The US Constitution - collected articles

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Permalink Reply by Philip Smeeton on September 19, 2013 at 8:10

The American Constitution is a fine document and our basic laws are absolutely necessary to enable society to function in a civilised manner. Work on refining and maintaining laws is a noble and necessary pursuit, as is opposing laws that damage society. That is where the debate is- what is good for us and what is bad.
While making laws, constitutions and codes of behaviour it is well to remember why we need them. Civilisation is a thin veneer on the savage within us. One of the most basic needs is that we should not be in constant fear for our lives in our homes or every time we leave them. Then as the constitution states(?) we should not have to be afraid of having property stolen. Life, Liberty and Property.

Permalink Reply by Alan Lake on January 6, 2017 at 0:14

The Constitution Does Not Protect Our Property

4th March, 2010

The U.S. Constitution is widely believed to have been written to limit the powers of the federal government and protect the rights of its citizens. Inexplicably, this belief is held even by those who acknowledge that the constitutional convention was called for the express purpose of expanding the powers of the federal government, supposedly because the government under the Articles of Confederation was too weak. That this was the purpose of the convention is not a disputed fact. Nevertheless, most people who care at all about the Constitution continue to believe and promote the “Constitution as protector of rights” myth. 

To the extent that the Constitution enumerates certain powers for the federal government, with all other powers assumed to be excluded, it does set some limits on government. When one includes the first ten amendments of the Constitution, it also protects certain rights. Indeed, the ninth amendment makes the very important point that the specific protections of certain rights does not in any way deny the existence of others, while the tenth amendment makes explicit the implied limitation to enumerated powers in the Constitution itself. At first glance, the so-called “Bill of Rights” seems to confine government power within an airtight bottle, rendering it incapable of becoming a violator of rights instead of protector of them.

However, this theory does not hold up well under closer examination. To begin with, the Constitution itself does not protect a single right other than habeas corpus, and that comes with a built-in exception. What the Constitution does do is grant powers, and not just to a representative body, as the Articles of Confederation did, but to three separate branches. That leaves it up to the Bill of Rights to serve the purpose of protecting our rights. Generally, those ten amendments protect our rights under extraordinary circumstances, but not under ordinary circumstances. More specifically, the Bill of Rights provides protections for the individual during situations of direct conflict with the federal government, such as when one is accused or convicted of a crime, when one is sued, on the occasion of troops being stationed in residential areas, or when one speaks out against the government or petitions it for redress of grievances.

Make no mistake, these protections are vital and have provided protections for the people against government abuse of power many times in U.S. history. However, they have proven ineffective against the slow, deliberate growth of government power under ordinary circumstances, when the specific conditions described in those amendments do not exist. This is primarily due to the absence of protection, either in the Constitution or in any subsequent amendment, of the most important right of all: property.

By “property,” I do not mean exclusively or even primarily land ownership, although land ownership is one form of property. By “property,” I mean all that an individual rightfully owns, including his mind, body, labor, and the fruits of his labor. It is specifically the right to the fruits of one’s labor that the Constitution fails entirely to protect. In fact, it makes no attempt to do so whatsoever.

In the Constitution itself, the word “property” appears only once, and that is in reference to property owned by the federal government (an inauspicious start). Nowhere does it make any mention of property owned by the citizens. 

The document does grant the federal government the power to tax “to pay the Debts and provide for the common defense and the general welfare of the United States.” This is a strikingly unlimited scope for which the federal government may tax its citizens. Arguments that taxes may only be collected to underwrite the subsequently enumerated powers have been struck down. Sadly, those decisions have probably been correct. While the power of the Congress to pass laws is explicitly limited to those “necessary and proper for carrying into Execution the foregoing Powers,” no such language binds the power to tax. The fact that the explicit limitation exists for lawmaking (which Congress ignores anyway) but not for taxation lends further weight to the argument that the Constitution grants Congress unlimited power to tax its citizens.

One can certainly make the argument that in 1789, the term “general welfare” would have been interpreted much differently than it is today. Indeed, one might assume that the term “general welfare” meant the general protection of each individual’s rights. Perhaps that is what many of the founders believed at the convention. However, it is clear that Alexander Hamilton and his Federalists, the driving force behind calling the convention, had far different ideas about what the term “general welfare” meant. Remember that for Hamilton, the purpose of government was not the protection of rights, but the realization of “national greatness.” This could only be achieved at the expense of individual rights, primarily property rights.

So, the Constitution itself grants Congress unlimited power to tax and does not even mention, much less protect, the individual right to keep the fruits of one’s labor. Certainly the Bill of Rights addresses this deficiency, doesn’t it?

It does not. Like the Constitution itself, the Bill of Rights is virtually silent on the central right of property. Out of all ten amendments, the word “property” appears in only one of them:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Unlike the congressional power to tax granted in the Constitution, the constitutional protections codified in the Fifth Amendment are severely limited to specific, extraordinary circumstances. The entire Fifth Amendment is set in the context of criminal law, granting certain protections to the accused and/or convicted. The phrase “due process of law” is a specific legal term that refers to those accused of a crime being given notice of the charges, opportunity to face their accusers, call witnesses in their defense, etc. This was obviously the intent of this protection of property, rather than a general protection of property rights against taxation. 

Even if one discards the clear intention of this clause of the Fifth Amendment and interprets “due process of law” more broadly, the amendment offers no more protection of property than if one interprets the clause narrowly. Since the power to tax is an enumerated power, Congress would be following due process of law simply by levying the tax in the first place. 

The last clause of the Fifth Amendment, regarding property taken “for public use,” is similarly limited to extraordinary circumstances. This clause undoubtedly refers to eminent domain, which is a grievous abuse of property rights, but certainly not one that affects a large percentage of the population. Even here, no right is protected. The clause merely requires the government to give the victim “just compensation.” There is no mention of the primary component of the right of property, consent. 

Furthermore, there is no mention of how “just compensation” is to be determined, although history has shown that the government itself determines what compensation is just arbitrarily. In a free society, the value of property is determined by the price at which the owner is willing to exchange it. However, since there is no requirement here of the owner’s consent, no such price determination can occur.

As for the remaining protections of property in the Constitution and Bill of Rights, there are none. These two phrases, protecting property under only the most extraordinary circumstances are the length and breadth of the Constitution’s involvement with this most fundamental right. It is this deficiency that has allowed the federal government to grow into the monster that it is, concerned with virtually nothing but the redistribution of wealth. 

If you believe the official myth about the Constitution, this might seem shocking. After all, the document was drafted by the same people that had seceded from their nation and fought a long and bloody war primarily to defend their right to keep the fruits of their labor. How could they draft a document to recreate their government, which they said only existed to secure their rights, and not only fail to secure the most important right, but actually empower their government to violate it with impunity? Certainly this was history’s most colossal error.

However, when you consider the political platform of the Federalists, which included corporate welfare, monetary inflation, deficit spending, government debt, and militarism, all designed to maintain the wealth and power of a privileged elite at the expense of the rest of the citizenry, the unlimited power to tax and lack of protection of property seem less like error and more like deliberate intention.

Whenever the subject of “constitutional rights” (a problematic term itself) comes up, people reflexively refer to the right of free speech. This is an important right, and one defended across the political spectrum. However, free speech, freedom of the press, and the other rights protected by the Bill of Rights, without property rights, are inconsequential – the mere window dressing of liberty. It is property that enables one to determine the course of one’s own life. Without it, the right to life is no right at all, but rather a privilege granted by those who own your labor.

George W. Bush was an enthusiastic supporter of the right of “free speech.” During a town hall meeting, an average American who opposed Bush’s policies rose and began hurling insults at the president, eliciting boos from the Bush-friendly audience. Bush reprimanded the crowd, reminding them that this man had a right to speak his mind, even if they did not like what he had to say. It was not the only time that he stood up for free speech. This was no accident. A government that has the unlimited power to seize the property of its citizens can afford to be magnanimous when it comes to free speech. Yet, for the citizen who no longer owns the fruits of his own labor, the right to complain makes him no less a slave.

http://thomasmullen.blogspot.co.uk/2010/03/constituiton-does-not-pr...

Permalink Reply by Alan Lake on January 6, 2017 at 0:33

Why the Bill of Rights Is Failing 

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TAGS Taxes and SpendingU.S. HistoryPolitical Theory

12/15/2016Ryan McMaken

225 years ago today, the first ten amendments were added to the new Constitution of 1787. Those amendments have come to be known as the Bill of Rights, and taken as a whole, these amendments represent what can only be described as one of the few parts of the Constitution worth applauding today. 

While most of the Constitution is concerned with centralizing government power, raising tax revenue, protecting the institution of chattel slavery, and hammering the independent states into a consolidated political union, the Bill of Rights, on the other hand, was concerned with limiting government power: 

Bizarrely revered by many as a "pro-freedom" document, the document now generally called "the Constitution" was originally devoted almost entirely toward creating a new, bigger, more coercive, more expensive version of the United States. The United States, of course, had already existed since 1777 under a functioning constitution that had allowed the United States to enter into numerous international alliances and win a war against the most powerful empire on earth.

That wasn't good enough for the oligarchs of the day, the crony capitalists with names like Washington, Madison, and, Hamilton. Hamilton and friends had long plotted for a more powerful United States government to allow the mega-rich of the time, like George Washington and James Madison, to more easily develop their lands and investments with the help of government infrastructure. Hamilton wanted to create a clone of the British empire to allow him to indulge his grandiose dreams of financial imperialism. 

Fortunately, there were some who stood in the way of the people we now refer to as "the Founding Fathers." They were the anti-federalists — the good guys who stood against Washington and his friends — and who demanded a Bill of Rights before they would even consider ratifying the new Constitution. 

In the end, however, the Bill of Rights was far weaker than it should have been. It was, essentially, just a bone the Federalists threw to the opposition in order to get the new Constitution ratified. The anti-Federalists, after all, couldn't even conceive of a federal government as enormous, bloated, and powerful as the US government is today. Living in a world where the individual state governments were both highly democratic and powerful in relation to the central government, the anti-Federalists figured they had enough tools at their disposal to prevent the sort of centralization that has taken place over the past two hundred years. The optimistic anti-Federalists were, unfortunately, wrong. 

But, there was much more than could have been done had the anti-Federalists insisted. William Watkins offers some insights today into what could have been: 

The state conventions that ratified the Constitution suggested over 200 amendments to the Constitution to cure structural problems. For example, Virginia offered a lengthy amendment on the judicial power. The proposal, in the main, would have limited the federal judiciary to the Supreme Court and various admiralty courts established by Congress. State courts would serve as the trial courts of the Union with the possibility of appeal to the Supreme Court. Virginians rightly feared that the federal judiciary would become an engine of consolidated government and sought to limit its power.

Massachusetts feared the new power of taxation in the federal government. Massachusetts, through the pen of John Hancock, offered a proposal that would have prohibited Congress from levying direct taxes ... As a check on the national government, Massachusetts wanted the states to retain some control on Congress’s demands for revenue.

Massachusetts also proposed an amendment dealing with concerns about inadequate representation. Massachusetts asked that the Constitution be amended to guarantee “one representative to every thirty thousand persons . . . A ratio in excess of one representative for every 30,000 people would not, in Massachusetts’s opinion, be a true and viable representation. How disappointed would Hancock and Company be to see that today we average 1 representative for about every 750,000 person. Do we have truly representative government? Not in the eyes of the patriots from Massachusetts who understood that true representation can only take place on a human scale.

[RELATED: "The US Should have 10,000 Members of Congress"]

Rather than sitting back today and mindlessly celebrating the “high temple” of our constitutional order, Americans should dust off copies of the substantive amendments proposed by the state ratifying conventions but ignored by Madison and the Federalist majority in the first Congress. (Massachusetts’ Amendments, Virginia’s Amendments, New York’s Amendments, North Carolina’s Amendments). 

The Bill of Rights Means Nothing Without the Liberal Ideology The Produced It 

Better, more limiting, and more numerous amendments may indeed have been helpful. 

But, no law written on parchment can control the size and scope of government if the population is willing to accept more state control over their lives. 

The fact remains that the American public generally tolerates countless violations of the Tenth Amendment, the Ninth Amendment, the Sixth Amendment, the Fourth Amendment, and the Second Amendment. The federal government routinely seizes private property without due process, fails to provide for speedy trials, passes federal gun control laws, and invents powers for itself that are reserved to the states and the citizens alone. Even the First Amendment is now being targeted by the feds who are the throes of limiting freedom of speech and freedom of the press by labeling objectionable ideas as "fake news" and thus not so-called protected speech. 

These attacks will be tolerated if the public is willing to go on doing so. After all, the Bill of Rights itself never actually limited government power. Government power — to the extent it has actually been limited — was limited because citizens valued the ideas reflected in the Bill of Rights. 

Once the public abandons the ideology behind the Bill of Rights, then the Bill of Rights will cease to mean anything, even if it still ostensibly remains in force. 

Not surprisingly, as the public ideological views have changed, the Constitution has failed to limit the power of the central government. Murray Rothbard observed this long ago when he wrote: 

From any libertarian, or even conservative, point of view, it has failed and failed abysmally; for let us never forget that every one of the despotic incursions on man’s rights in this century, before, during and after the New Deal, have received the official stamp of Constitutional blessing. 

Rothbard was echoing Lysander Spooner who wrote:

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.

From a legal standpoint, this state of affairs was easy to bring about because in practice the Constitution, including the Bill of Rights, means whatever the Supreme Court says it means. But, even the Court is limited by the public's ideological views and the public's willingness to tolerate the Court's rulings. If the public is willing to accept the seizure of private property in the name of the War on Drugs or the War on Terrorism, then we should not be surprised when government agencies do so. If the public is willing to grant the federal government powers that are clearly not found in the Constitution itself, the fact that the Bill of Rights legally prohibits such things will be of little consequence. 

As written, the Bill of Rights is a beneficial summary of many of the limitations that should be placed on government power. Without a public rooted in an ideology that supports and demands respect for the Bill of Rights, however, the words will ultimately mean nothing at all.

https://mises.org/blog/why-bill-rights-failing

Note from Alan: The comments posted by Diane Merriam are well worth reading as well.

Permalink Reply by Alan Lake on January 6, 2017 at 6:35

{My comment on the above}

This article, and your other "The Bill of Rights: The Only Good Part of the Constitution" have made me happy, plus I really appreciate the comments of Diane Merriam below.

As you said in the other article:

"In other words, it [the constitution] should never have been anything more than a customs union and a mutual defense agreement... Nothing more is necessary or prudent. Independent states enter into mutual defense agreements quite frequently, without surrendering their independence, and trade agreements are a quite mundane affair in the history of states."

In other words, something like NATO with a free trade area.

But as you point out above:

"Better, more limiting, and more numerous amendments may indeed have been helpful. But, no law written on parchment can control the size and scope of government if the population is willing to accept more state control over their lives."

Or as you stated even more bluntly in "Magna Carta and the Fantasy of Legal Constraints on States":

"It does, after all, state that a political ruler cannot just do whatever he wants. There are rules. The problem, of course, is that rulers don't have to follow those rules ... if the state truly enjoys a monopoly on the means of coercion, then it doesn't really matter what the rules are. The state can simply rewrite the rules."

So now I'd like to add my observations.

(1) For a long time I thought that you Americans had used the wrong word for your 'states'. After all, we talk about the state of Israel, the 2-state solution etc, meaning a 'sovereign nation'. Then I realised that you didn't use the wrong word, the original intention was that Texas, Louisiana, etc would be separate countries, separate nations minding their own affairs, like France and Germany.

(2) Which gets back to your point above about a defence agreement along the lines of NATO, and the issue of things being written on paper being (a) open to revision by the current 'government' which I call the self-altering-code problem, and (b) difficult to enforce, which I call the paper-doesn't-enforce-itself problem.

(3) I suggest that we can consider a constitution as a piece of code, and the ability of that code to modify its fundamentals is a problem requiring an algorithmic solution.

Diane Merriam, in her post where she lists the 8 good amendments made to the original constitution, suggests that a solution may be found by more skillful coding at the fundamental level, to avoid 'throwing the baby out with the bathwater'. While I'm all for the more skillful drafting she suggests, I think it still cannot get round the problem that the government can simply rewrite the rules, and the problem that paper-doesn't-enforce-itself.

As Philadelphiensis commented: 

"How can a document which expanded the size and scope of government, also be a document which is perceived to limit the government? We ought to call it doubleplusgood doublethink."

I think this is a symptom that a single code-only solution to this problem is impossible, but that it needs a drastically different method of attack - through multiple constitutions in separate countries.

(4) I think its clear that the ONLY WAY you can stop one bunch of people (or faction) from being able to hijack the wishes of another bunch of people, is by putting them in separate countries with their armies facing off along the border. Let France try altering Germany's constitution and see what happens. Paper is not self-enforcing or self-protecting, but nations are.

(5) So I think the base problem is the loss of individual nationhood. I think there is no other solution to the self-altering-code problem. Of course, each state/nation can get a lousy government that corrupts its original code just like Democrats from Rosevelt to Obama have done, that problem remains, so what's changed? What's changed is that as the effects of corrupted governance become apparent over the decades, families can emigrate to other state-nations. Thus farming families struggling in the state created droughts of California (see Victor Davis Hanson), could emigrate to another state, and know that they have truly left all that subsidising, interfering junk behind. And the fact that these are separate economic powers, with visible migration between them, will make it very easy to note the effects of the different government styles. Indeed, I think it will encourage an even further diversity between those styles, which can only be a good thing.

Permalink Reply by Philip Smeeton on January 6, 2017 at 17:40

The protection of life and property, are two essential basics in a social contract.

Permalink Reply by Alan Lake on January 7, 2017 at 9:13

Diane Merriam previously expressed my concluding point clearly:

"The original "country" as created under the Articles of Confederation was extremely weak, and the states really were, de facto, independent sovereign nations in and of themselves."

That's what America needs to get back to. Obviously its not going to happen overnight, but it is credible that increasingly disillusioned states, like Texas, could seceede one by one. It would be like Brexit, only called Texit.

But that begs the question: "It failed before, because the 'states' were too weak and scared to function by themselves, so what makes you think that that model could work now?"

What's different now is population size, economic power, and technology. Modern Texas must be more powerful economically and militarily, with a larger population, than all the previous Confederate 'states' put together. In addition, modern technology means that previous problems of economic and military co-operation between separate sovereign nation states, can now be solved relatively simply. It would not be such a problem for Texas to contribute manpower to, and co-ordinate military assets with, a combined US NATO type alliance.

So, paradoxically, it was necessary for the Confederacy to end before, in order for the united 'states' to become strong and protect their freedom. But now it's necessary for some states to break away from the union, in order to protect their freedom (from central government mandates), and to avoid becoming weakened by the fiscal profligacy, and even currency debt collapse, of that government,with its central bank.

Permalink Reply by Philip Smeeton on January 7, 2017 at 15:35

It could solve some problems to dissolve the union of American states, but any good would be undone by migration if the territories were not divided according to ethnicity. In other words without race laws the problems would remain the same. American problems are ethnic/racist. The white-americans are not the problem it is; black-americans, mexican-americans (aztecs and mayans, it is incorrect to call them hispanics), muslim-americans and native-americans that are causing all of the problems. The EU might have functioned if its population had remained european, migration is what is actually tearing Europe apart not just bureaucratic stupidity.

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