L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 81, July 17, 2000
by E.J. Totty
Special to TLE
If I had the Constitution of our nation to do all over again, there are some things I would do much differently.
It occurs to me, after much contemplation of the matter, that where the founders of the United States of America foundered in their efforts, was in the substance of the government they brought into existence, rather than in the style.
The founders were not honest with themselves: they would not see that ordinary men can be just as dastardly as the common criminal - given half a chance. The anti-federalists demanded that certain safeguards be employed, that certain absolute limits be emphatically stated (as in the Bill of Rights), and that the limits otherwise would not be adhered to in the face of other pronouncements that authorized overriding power in other circumstances.
The Federalists were seeking power to counter power. They figured that a nation needed a strong central government to overcome external threats as that which they had faced previously. Their error was in the essential composition, and distribution of those powers. The powerful men of the period were unable to 'think outside the box', and emulated those aspects of other existing governments, with the classical aspects of the Greek and Roman period governments. They never gave Jefferson or Paine much consideration beyond the bare essentials necessary to achieve a working consensus.
Thus we are left to contemplate what really honest and limited government we might have gotten, were they not so pressed for time - given their circumstances and the period in which they lived.
We are left with a series of contradictions, which when taken in their whole, allow for the wholesale slaughter of the liberties which the document of the Constitution was supposedly enacted to prevent. In everyplace we look, in the U.S. Constitution, we see powers enabling the government to act as it sees fit in the face of whatever situation it may find itself, the amendments be damned. This needs to change.
There are three all-important concerns for a 'government of the people', which if not properly addressed, will ultimately result in its destruction:
In the nature of law -
The laws of a true Republican nation exist for only one purpose - the preservation of liberty: life, self-determination, and protection of property rights, i.e., the protection of natural rights has the highest priority, and above all else it is the prima facie reason for any government of 'the people'.
Any law which pretends to accomplish the aforementioned (especially those terribly spiteful things, which while having no life of their own, are able to snuff-out the essence of life itself from the hapless citizen minding his own business, and in no way offering real offence to his fellows), and in fact diminishes those liberties in positive law, is a fraud; and any fraud of a law must be removed, and its perpetrators punished to recompense the disenfranchised, and forever forbidden to serve in the name of the people, in any capacity.
Therefore, the body of law - or Corpus juris - ought be small and compact, yet broad in its coverage sufficient to lend itself to almost any application it is appealed to. It is self evident that if ten simple commandments were sufficient enough to be used as the basis for most of the Mosaic laws, then in consonant fashion a modern government ought well enough be able to fashion a simple set of edicts based directly upon the natural laws, and any judgement rendered in a court would rest upon the rightful determination of tort, with each case standing by itself.
In the nature of defence -
When a government hires out men in a permanent way to act as soldiers to its polity, then it has in effect contracted nothing more than mercenaries. When those men act in concert to the orders of their superiors, they do not do so with their own fellow citizen's benefit in mind: they are mindless to their task. The only accounting for wrongs done - if ever, is long after any harm has been done. And, it is very important to remember that he who rules also determines what is considered a 'wrong'.
Therefore, the business of the defence of a nation best resides properly with the citizenry itself, and not with any cadre of mercenaries, who will in the fit of a moment, decimate their fellow citizens at the whim of a superior. And, if the citizens are properly appraised of an external conflict, they are less likely to seek the invasion of another nation's shores for a vague or esoteric political goal. If the stated purpose for the militia of the nation is for nothing more than it's defence and for not for any other purpose, military adventurism will not exist as a possibility. If the polity cannot be subverted to ulterior intent, then the efforts of special interests will go wasted.
When the citizenry of a nation is made to understand that no cavalry is going to come and save their bacon in time of need, they will resort to either paying for mercenaries, or mounting their own defence, in the name of a militia. For the lazy or unprincipled, the option is to surrender to tyranny. Please note that when hiring mercenaries, the option for tyranny is just a few steps away, since the mercenaries and their leaders have control of every major armament.
In the defence of the nation, all men and women of legal age (16 years) would be required to spend a certain minimum time in their state's militia, on a yearly basis until age 50, receiving both basic and advanced military training, with members required to maintain proficiency in small arms use, by constant practice, and to maintain said arms in readily deployable condition at their place of residence, with a minimum specified amount of ammunition and field rations held in reserve for ready deployment.
Those members whom excelled in their field would be offered to serve in the select militia of the nation's ready forces, and as the trainers of the reserve militia. Their payment for services would be directed by the US Congress, while the payment for service during periods of duty in their own states as reserve militia would be defrayed by the state wherein they reside.
As part of their sworn oath to duty, the select militia would be required to take an oath, that under penalty of death, their acts will never be against their fellow citizens - except in self-defence, and that in no case are they to execute an order from any superior which they know to be illegal, or for which will result in the injury or death of their fellow citizens.
In the nature of taxation -
A true republic with minimal government, is one with the very least ability to raise taxes, or impose any law that allows for the raising of revenue except for those very minimally required, and absolutely necessary functions of a government: The defence of all liberties, the defending of all borders against attack, the protection of its citizens from unlawful acts (under international law) by tyrants in other places, and the positive acts which foster and promote general commerce between the states, the tribal Indian nations, and foreign nations.
That said, then the current constitution fails in this regard, in that the congress may - with little impedance - raise whatever monies it so desires with little more than a simple majority of both houses, and the consent of the the Executive (coconspirator). This, absolutely not to mention the laws it deems necessary to infringe the liberties of the citizens at the behest of whatever proponent however large or small, in the face of Constitutional prohibitions to the contrary.
And worse, it may allocate and appropriate monies in whatever way it pleases, no matter the outcry of the people, or their outrage. In short, there is little accountability, and even less effective remonstration on the part of the people. The solution is for the congress to have neither the general authorization to appropriate or disburse those monies, nor invent new ways to spend them; or make laws in the vacuum of the isolation and independence of accountability, or in offence to the liberties of the people. If what you do cannot have effect, then no amount of money or compensation can have affect either.
Further, the answer is to negate having a separate and sovereign central government, with its own permanent congress. There would be only one sovereignty: The Constitution of the United States in all matters of constitutional law; and where no power is specifically and narrowly defined by that Constitution, the powers would remain with the states, and the people respectively, and for which there would be no review by any court or law, except for breach of powers or of individual liberties. The true form of 'no double jeopardy' would then exist. For any person to be tried under a state's laws, the federal statutes would have to be applied as well, excepting that no federal law would diminish a liberty held in greater esteem by a state.
Any federal statute which is made in pursuance to protection of any aspect of liberty -under natural law - hinted at in the Bill of Rights, would automatically become a state statute as well. Thus a person would be prosecuted under only one law, and not by separate jurisdictions of state, and then federal. The application of law would encompass every aspect, both state and federal: One people, one land, one law.
To achieve the close ideal of the citizen having control over his government, in whatever guise it might find itself, I propose that those representatives whom serve in the federal legislature be appointed by election in their own states legislatures - from among those already in office in those state legislature, thus resulting in a true conference of the states. But in no case would any state have more representation than any other, and in this way, the more populous states would not trump or override the interests of other states: a true 'mind your own damned business' state of affairs.
The period of the assemblage of (and appointment to) the Federal legislature - not to exceed 4 months (except in time of actual declared war, or for the matter of impeachment of whatever federal official), would then recess and return to their respective states for consultation and legislative decision upon the current - if any - referrals to the states for their yea's or nay's. The terms of actual assemblage for the state and federal legislatures would alternate so as to prevent concurrent assemblages. In no case would any person be given compensation for serving in the federal Congress, but merely provided with an office and staff, and temporary lodgings with travel expenses.
The Federal legislature in the name of the Congress would determine what level of appropriation is necessary for a department to operate efficiently, whereupon with an 80 percent vote of approval in both houses of the Congress, it would then submit that to the legislatures of the several states, who would either by eighty percent of their number, approve of the appropriation, or deny by a lack of that vote; the people in any state upon deciding contrariwise, would by special election, counter the vote by an appropriate minimum 80 percent show and vote to the contrary. The Congress upon receiving 80 percent of the approval of the states, would authorize the disbursement to the affected department.
The President would have no official say in the matter at all, other than to submit to the Congress a yearly budget request, detailing among other things, the expenditures of the present government, projected shortfalls, and suggested improvements.
In this style, the Federal Congress serves as a research and validation organ, through which all requests for monies must pass. The states in-turn, receive those 'educated' pronouncements and act accordingly. No federal law, rule, or regulation would ever see the light of day, nor would any treaty pass but with the fullest consent of the states - through the people. And all laws, rules, and regulations would exist for no longer than a maximum of (5) years, and expire without the necessary debate, and passage by 80 percent vote of the states legislatures.
Every treaty would have to be ratified again at periods of not more than (10) years, and no treaty would ever in any way, manner, fashion or form have affect in whatever way upon the rights of the people while within any area where the Constitution, and the laws of the United States have effect, and in any other place where there is not a recognized external sovereignty - of a real nation, and not a quasi-governmental body.
No rule or regulation (made by any department, state or federal), would have application upon failure of reenactment, the enabling body of law from whence either derived its power to exist. Further, any penalty accorded as a result of prior breaches of said failed law, would cease to have effect, and all penalties, forfeitures, or other instrument of law, would be directly recompensed.
In all cases, the source of funding is the user of the service provided by the specific Department - and no other entity. The states would be the primary source of all monies to operate those Federal Departments which directly affect their interaction, such as the Interior, Justice, and Treasury. The States would also be directly responsible for funding Defence in proportion to the census of the enumeration. In no way would monies be collected from the states to be redistributed backto the states. The monies collected would flow in one direction only, and only in the absolute need of the department(s) it was collected for.
No general tax would ever be allowed to be suggested by either the US Congress, or be enacted by any state or other political subdivision thereof, where the United States Constitution has effect. Further, no tax collected would ever favor or punish by either inclusion or exclusion; single out any person or group of people; be allotted either directly or indirectly as a condition of possession (no Real Estate taxes), ownership, purchase, use, manufacture, sale, or condition of either residence or non-residence.
By way of clarification, 'user fees' would pay for all local services, whereas the taxes levied at the state level, would cover both the state and federal obligations. The state tax would be mainly levied on sales. In this fashion, all states would have approximately the same level of taxation, per capita.
With neither a general power to lay and collect taxes, nor the ability to disburse it by favor, there would be no ability to exert any undue or corrupt influence. In every case, the need would be placed before the people for their evaluation as to need, and their acceptance of the requirement, and where a tax is instituted, the people would be given the opportunity to vote on the matter, and with a vote of not less than 80 percent of the registered voters, i.e., a minimum of eighty percent of all of the registered voters must show at the poles and vote in the affirmative for a passage of the proposal. All taxes raised would be for a specific purpose, not to exceed 2 years - or less, and be for no other purpose.
In essence, the only thing permanent in the new paradigm of government, would be the people's rights.