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Friday, February 02, 2007
Toward A New Libertarianism Part 10: The Great Papers
Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies & delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. Whatever of these enumerated objects is proper for a law, Congress may make the law; whatever is proper to be executed by way of a treaty, the President & Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence. Nothing is more likely than that their enumeration of powers is defective. This is the ordinary case of all human works. Let us go on then perfecting it, by adding, by way of amendment to the Constitution, those powers which time & trial show are still wanting. [Thomas Jefferson, in a letter to Wilson Carey Nicholas, September 7, 1803]
Quite a lot of nonsense has been spouted, some of it from persons bright enough and knowledgeable enough to know better, about the "right" of the majority to legislate as it pleases. Conservatives so inclined tend to point to the "necessary and proper" clause; liberals prefer the "general welfare." The most candid, honest majoritarians don't bother with justifications, but merely proceed as they wish with a "what are you going to do about it?" smirk that reminds us that the State has the biggest collection of guns.
Why, then, do we have a federal Constitution? Why does each of the fifty states possess a state constitution? Why does each of the three thousand counties and the many cities and villages of our nation possess a district charter? If the "necessary and proper" clause means that a majority of Congress can legislate about whatever it pleases -- if the "general welfare" clause means that governments can do whatever they deem to be for the greater good -- then what significance do our chartering documents possess? Why did the Founders bother with them?
They who designed the federal system didn't deem their labors to be merely decorative. They fought over every word and comma. Indeed, when the taxing power clause of Article I Section 8 was drafted, Gouverneur Morris tried to alter it surreptitiously, by changing:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and Provide for the common Defence and general Welfare of the United States;
To:
“The Congress shall have Power To lay and collect Taxes Duties, Imposts and Excises; to pay the Debts and Provide for the common Defence and general Welfare of the United States;
It took a sharp-eyed reader, James McHenry, to find Morris's alteration, which would have given Congress unlimited power to levy and collect taxes for any purpose or none, unencumbered by the enumerated powers that followed. For his subterfuge Morris was upbraided by the Convention, which had entrusted him with the final draft of the Constitution.
But many of our time would argue that the specific text and provisions of the Constitution are inapplicable to present-day America. Apart from its structural and procedural requirements, they say, it has no bearing on the "problems" of the United States in the twenty-first century and should not be allowed to impede our search for "solutions." Generally, in arguing thus, they reveal that they have agendas that respect for the Constitution would obstruct, or sacred cows it would starve. They disdain to undertake the amendment process it prescribes for the alteration of its terms, whether out of impatience with its complexities or from fear that the necessary supermajorities might elude them.
Though the Constitution's specific provisions are massively significant in and of themselves, the mere existence of the Constitution, and its imposition of a comparable form of government upon each state of the Union, is infinitely more significant. It speaks unambiguously of the sole source of legitimate authority: the sovereign people.
The sovereign people, by committing to a Constitution, fix the powers and responsibilities of government within definite bounds. They incorporate into the document explicit acknowledgements of the rights they possess, and forbid government to abridge them. To allow for the possibility that changes might be required, they define an amendment procedure, but to ensure that the safeguards of their rights will not be undermined casually or for trivial reasons, they make the process arduous and time-consuming.
It is this triad of republican axioms:
- Government's powers must be expressly defined and limited;
- Private rights must be acknowledged and guaranteed against infringement by the State;
- The procedure for amendment must be strict and inflexible;
...that they who argue for an untrammeled power in the majority seek to unweave. To push any of this aside in service to any cause is to destroy the legitimacy of American government. After that, there is only arbitrary power, and attempts to evade or deflect it.
Insistence upon the republican axioms is the most important element lacking in the political discourse of our time. In its absence, freedom -- the right of each man to do as he pleases with that which is legitimately his -- stands naked before the hordes of special interests eager to ravage it for their own gains.
At the time of the Prohibition debates, no one indulged in any fantasy that Congress had been granted the power to legislate against the production and sale of alcohol. Several of the states possessed such power, by the terms of their own constitutions, but it had not been extended to the federal government. Thus, the Eighteenth Amendment was proposed and eventually ratified. When the nation saw fit to withdraw the power, the Twenty-First Amendment was proposed and ratified according to the same procedure. Why was this not done in the case of marijuana, cocaine, and narcotics?
After World War II, when debate began about the desirability of an interstate highway system, it was plain that Congress possessed no power to appropriate funds for such a thing unless it could somehow be tied to one of the seventeen enumerated powers. The solution was to make the system part of the national defenses, by requiring that each highway be functional as an emergency runway for military aircraft. Why was there no debate about the extra-constitutionality of federal appropriations for health, education, or welfare?
Taxation, to Gouverneur Morris's dismay, must be tied to the other enumerated powers of Congress if it's to be constitutional in application. Nowhere in the Constitution is there a grant of power for subsidizing the arts or humanities, or for operating a federal broadcasting network. Why is there no discussion of this Congressional arrogation of the powers of a king of old?
Simply, because the great papers -- the federal Constitution and the lesser charters of the states, counties, and cities, each of which expresses the constitutional principle by its very existence -- have been made into "blank papers by construction." It's as if what was really important about them was the parchment itself, rather than the rules and limitations written upon them.
Blank papers may be written upon to any effect, or none. They may be used to kindle a fire, or to stuff a hole in one's coat. They cannot safeguard freedom. But neither can mere insistence on one's rights, without regard for the constitutional foundation upon which American government was intended to rest.
Libertarianism cannot succeed on the basis of simple claims of rights, for such claims will always be debated without end. Libertarianism must become coextensive with constitutionalism -- the triad of republican axioms -- to have a practical foundation in the material world. Thus, we will have radical libertarians and more moderate types; satisfied libertarians and dissatisfied ones; libertarians willing to amend for reasons of convenience and libertarians who will allow no relaxation of the State's constraints except for the greatest of exigencies, but all who agree to the supremacy of the constitutional principle will be libertarians.
And all who dissent from that principle will be beneath contempt.
Comments
Wow!....just….Wow…
Well said, and concisely enumerating the free and easy “interpretations” and “constructions” of the Constitution that have so eroded our liberties…
Just…Wow!
Doug in Colorado
Posted by .(JavaScript must be enabled to view this email address) on 02/02/2007 at 04:51 PMAnd all who dissent from that principle will be beneath contempt.
I would put this slightly more kindly, thus: “And all who dissent from that principle cannot legitimately call themselves Americans.” There are actually lots of people who are, at heart, constitutional libertarians, but who for various reasons are not officially citizens of the United States. But I think such people could certainly be called allies and fellow travellers, if not honorary Americans. This Canuck, for example, thinks that he would fit in very well in a country where such principles were widely accepted and practiced.
Bravo for this succinct gem!
Posted by .(JavaScript must be enabled to view this email address) on 02/03/2007 at 01:13 AM
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