THE LIBERTARIAN ENTERPRISE
Number 542, October 25, 2009
"I am about to embark upon a new adventure."
Writing the New Texas Constitution: Avoiding Inherent Flaws
Attribute to The Libertarian Enterprise
I hear a lot these days about the constitutionality of secession. In this article, I will prove that the Constitution is without authority and that the subject of secession related to the Constitution is entirely irrelevant, and that any states need not concern themselves with the constitutionality of secession.
A constitution, or any document organizing a government, must have authority and validity. But the US Constitution has no inherent authority or validity and has never had either. If we can learn what the US Constitution is and what it is not, we can understand the flaws in the old constitution and then craft a new Texas constitution with authority and validity.
I believe that one of the major reasons that Washington is able to operate as it does, outside the strictures of the Constitution, is because those persons in power know that the Constitution is not legally enforceable. Absent a restraining legal document, they do exactly what they wish and what they can get away with.
The US Constitution has the following words in its Preamble, showing the intent of the Framers:
We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the united States of America.
So what exactly is this Constitution?
I think it could only be called a "loose agreement" between certain people at the time that it was written and ratified. It is not a treaty ratified between sovereign states, which would have the weight of law. It cannot be considered a legal contract, since legal contracts have characteristics that the old constitution does not have.
It was ratified by votes in the several states. But ratification in any form didn't turn it into a legal document with enforceability and authority.
The old constitution's sentiment seeks to secure blessings to themselves and their posterity, meaning future generation of citizens. But a loose agreement cannot by law or reason bind any future person to its details. Contracts cannot obligate persons who will live in the future, either. They can only obligate persons who are living presently and who sign and receive the contract.
The old constitution is not a legal contract. The Constitution never bound any two or more parties in a legal way, nor did it ever purport to bind anyone. A timeless principle in contract law is that the contract is not valid until the contract is signed by all parties and delivered to the parties, or the representative of any signatory party. Any party may refuse to sign or deliver a written instrument and thus invalidate the contract. The US Constitution was not signed by anyone or anyone's legal representative. It was not delivered to anyone or their representative. No one in the USA, either alive or dead, has ever signed the Constitution as a legal contract between parties. So how could it be a legal document with binding authority or validity?
Contracts are also voluntary. The parties come together for a purpose, but are free to dissolve the contract based upon the terms of the contract. Even if they leave contrary to the contract terms, there can be consequences, but they can still leave.
Lincoln was completely right in this matter. His position was that, once in the Union, no state can ever leave. And if the US Constitution was an enforceable contract between parties, his position would have been rejected instantly and laughed out of any court in the land. But in light of the unenforceable nature of the Constitution, Lincoln was free to do what he pleased as it related to the Confederate States of America and war. But the Confederate states were also right to secede from a Union that could not bind them. Constitutionality was irrelevant.
Even though the old constitution wishes to bestow blessings and liberty on their posterity, it has no power whatsoever to achieve this goal. Further, it never showed any intention toward future generations other than to offer useful recommendations to their posterity toward the blessings of liberty. If they were in some way able to bind future generations to the Constitution, they would not have bestowed liberty but slavery upon their posterity, since their children would be bound to it from birth, like it or not.
The Constitution is not a perpetual corporation. The perpetuity of a corporation would require that new members voluntarily assent to its laws and by-laws as old members die off. New members must sign on because without their legal signatures, they would not be members and could not vote on corporate issues. There is no evidence whatsoever that the Framers intended the US Constitution to be a corporation's organizational document.
So we can see that the Constitution is not a contract. It binds no one, and never did bind any persons. We see that all those who pretend to operate under its perceived authority act without any legal and legitimate authority.
Those who support the Constitution fall into three classes:
1. Parasites who see the government as an instrument they can use to further their own desires or increase their own wealth.
But we voted and elected these Representatives and Senators. They are our duly elected officials, aren't they?
Are our elected representatives our personal agents with legal authority to bind each of us individually and collectively? No they are not. In order for you to have a legal representative, you must sign your name to a document that gives the representative the power to act in your behalf. This document is commonly known as a "power of attorney." You must also deliver the document to the agent.
Did you ever sign a power of attorney so that any elected officeholder could make binding decisions on your behalf? Did you authorize any person to obligate you to laws, regulations or the payment of taxes to any governmental body? I know that I have not done so.
And the secret ballot makes the concept of any elected representative acting as your agent even more ridiculous. How could secret voters hire an agent? How could secret voters enter into a power of attorney agreement?
So we see that those persons acting as our elected representatives are acting unlawfully, and that we have both the right and duty to treat them as usurpers and frauds.
Then upon what authority does the Federal Government operate? Who gave them the authority to enact laws, tax, confiscate men's property and kill other men who resist their machinations?
You could say that voters select their representatives by ballot, and so bestow authority upon them. But in matter of law and reason, this is not true. It would not be upheld in a court of common law. If you and three of your friends voted in favor of a proposal in which a fourth friend would take it upon himself to deprive me of my property or my life, he would be a robber and/or a murderer. If he presented himself at my door to do his work, he would be unable to produce any legal authority to complete his task. Absent legal authority, I should treat him as a robber and murderer and resist his efforts even unto deadly force.
In a courtroom, a judge would ask to see your representative's written authority to act in your behalf. You would be unable to produce such written authority.
So voting is neither a contract nor a power of attorney. And secret ballots should never be considered legally binding, since no signed contract between parties ever existed. Further, if voters authorize another person to act as their agent, they should do so in an open manner so to accept responsibility for the agent's acts. That's called "liability," and that's what happens out here in "the real world." But the US Constitution, in Article I, Sec. 6, says that "for any speech or debate (or vote) in either house, they (Senators or Representatives) shall not be questioned in any other place." So your agent cannot be held responsible for any laws they make...and neither can you. So, if no one is responsible, who is responsible?
And let's return to the subject of legal authority. The Constitution has no legal authority to bind any two or more persons. If it did, you would possess a copy upon which you would find your own signature and at least one other person's signature. But that document does not exist in any form and has not existed in over 235 years. So, absent that authority, voting is only theater. It is an exercise in making the citizen feel that he is participating in a legitimate government.
The Federal Government in Washington has been illegitimate from its origin. There is no enforceable law to restrain it from any act. It was only the morality and ethics of the earliest founders that restrained them from tyranny. Unfortunately for Americans, that morality and ethical restraint are a quaint memory.
OK. Convinced that the old Constitution is a cruel joke? Then, how can the new constitution be crafted to guarantee legitimacy and legality? If the framers of the new constitution just write one like the old one, it will suffer the same illegitimacy issues as the old one.
Here's a suggestion on how to write a new Texas Constitution.
Form the new Texas as a Non-Profit Corporation... Texas, Inc. The Constitution can be its laws and by-laws. Each person will be given the option to subscribe to Texas, Inc. and become a citizen. That person would have to be presented with a copy of the Constitution. Each person would have the choice to accept the Constitution in writing. Once accepted, each citizen would be, in essence, a shareholder in the corporation, since a person could not be a citizen/shareholder without signed consent. Each citizen would be issued one share of common stock. That would also mean that those rejecting the constitution could not be Texas citizens. Minors could not be Texas citizens until they were of legal age to enter into a contract, usually eighteen years of age.
Texas Inc. might instead choose a for-profit corporation as its charter entity. In that situation, the general public might be issued one share of common stock when they sign their Constitution. The shareholder/citizens could actually invest their own money in preferred stock. This would provide the new nation with capital. Shareholders holding preferred stock might receive dividends if Texas Inc. makes a profit.
As either corporate structure would be closely-held private corporations, the charter could specify that the stock could not be sold to non-citizens. Only Texas citizens would be eligible to be investors.
The founders of Texas, Inc. would have the right to present the offer of citizenship to anyone anywhere on the planet. They could cherry pick the world for the best and brightest talent! It would be a component of immigration policy.
Voting could be done by proxies, and the citizen could designate his elected representative as his proxy in writing. Or he could vote himself on any issue.
Think this is unworkable? The largest corporations on the planet have been running this way for over a hundred years. GM (pre-nationization), Exxon, Standard Oil, all of the Dow Jones top 30...they all work this way just fine. Many have millions of shareholders, just like Texas Inc. would have.
There are many details that must be worked out that are not listed in this article. But this article was not written to form a new government. It was written to get you thinking about constitutions and how they directly affect YOU.
Thomas Jefferson's shining jewel, the Declaration of Independence, states that when a government shows a long train of abuses meant to reduce the people under absolute despotism, it is the people's right and duty to throw off such government and provide new guards for their future security. Texas Incorporated could be that new guard that secures the future of a New Texas nation.
Texas, Incorporated. An idea whose time is come.
Thanks and honor go to Michael S. Rozeff, retired Professor of Finance, for his wise counsel and comment. You can read his brilliance at www.LewRockwell.com in the Archives.