THE LIBERTARIAN ENTERPRISE
Number 611, March 20, 2011
"They are deliberately destroying America"
Attribute to The Libertarian Enterprise and "Where We Stand"
An enormous amount of fluff has been floated by all sides of every issue over the concept of the United States Constitution as a "social contract".
Most pertinent, in all likelihood, to those individuals who call themselves libertarians, are the curious notions, stated in a little pamphlet, still in print, called No Treason: the Constitution of No Authority, of a 19th century abolitionist lawyer with a splendidly sprawling beard, as well as the splendidly sprawling name of Lysander Spooner.
It was Spooner's contention that, under the principles of English common law established over the previous thousand years or so, if the Constitution, which was ratified in 1789, was any kind of contract at allsocial or otherwisethen it could be binding only upon those fifty-odd individuals who had actually signed it, certainly not upon anyone who had not done so, and especially those who hadn't been born yet.
The Constitution, then, by Spooner's time, possessed or conveyed no authority, and it was no treason (a serious consideration at a time in history when pennies bore the inscription, "Our Nation's FlagShould Anyone Attempt to Haul It Down, Shoot Him on the Spot") to say so.
It's more than a little difficult to get past Spooner's argument, especially in a civilization in which "government is instituted among men, deriving its just powers from the consent of the governed". It may be the most important principle we live by, the only difference between rape and sex, after all, being consent. The late philosopher Robert LeFevre believed that this "consent of the governed" should be unanimous, or at least super-majoritarian in nature. Thanks to him, that's the idea my first novel, The Probability Broach was founded on.
So if the Constitution isn'tand can't bea social contract, what is it? It is a chartera blueprint, if you willcontrolling the activity of government in this country. (Interestingly, those who participate in various ways as members of the government, are legally required to take a binding oath to uphold and defend the Constitution, making their consent to it explicit.) I have long contended that it is an operating system, little different in its intended function from C/PM, DOS, Windows, Unix, or Linux, demonstrating about the same reliability, but to be altered or disregarded with many of the same consequences.
Most importantly, it's the one and only source from which those who exercise power in this country legally derive any claim to possess authority. Their faithful adherence to it ought to be the firstand possibly the onlyqualification for obtaining and holding public office.
Unlike any other government on the planet, this one was handed a list by its foundersArticle I, Section 8 of the Constitutionof all the things it can or must do. It's a short list, very specific. Anything else that government does, it does without Constitutional sanction, in violation of the law. Various experts differ as to how much government would be left if this one item were enforced. Whether it's a third, a quarter, or, as I suspect, five percent, it isn't much.
There is also a list (tacked on as an afterthought, which should have told us something) of things government can't do. It's the first ten amendments to the Constitution, commonly (but erroneously) called the Bill of Rights. There are certain things it's vital to know about it.
First and foremost, those ten amendments recognize the prior existence of rights. Most emphatically, they do not create or bestow them. They do attempt to guarantee or protect a number of them, basic rights that all human beings possess, simply by virtue of having been born. Which is to say, every man, woman, and child has unalienable individual, civil, Constitutional, and human rights that spring from our very existence, and not from any government document, doctrine, or dogma.
It should be noted that, since the Bill of Rights is a series of limits on government power, and not of rights we're "allowed" to exercise, there is no age limit involved. Children have exactly the same right to be free from molestation by agents of the government as adults. Which means, among other things, that they have a right to the means of self-defense, and to be free from the authoritarian socialist school system spying on their FaceBook postings.
Second and foremost (yeah, I know) the Bill of Rights was never written for us, but for thempower-hungry clowns unhappy with the looseknit gaggle of small republics that America consisted of under the Articles of Confederation, and wanted a strong central state, instead. At the risk of repeating myself, the Bill of Rights is not a list of things we're allowed to do. As human beings, we are free to do any damn thing we want, and the word "allow" doesn't come into it at all, as long as it doesn't damage anybody else's right to do the same thing.
Third and foremost, there is no provision whatever, within the Constitution, for suspension of the Bill of Rights or any other part of the document. That's the only place such a provision could be, and it isn't there. And, since it is the highest law of the land, no lesser legislation can create such a provision. The Constitution stands, no matter what "emergency" or any other excuse is cited. Any member of the government who attempts to override or ignore the Constitution has not only violated his sworn oath of office, he is a criminal.
Other creatures have natural defenses they can use to preserve their lives. Lions have claws and teeth. Gazelles run swiftly. Prairie dogs duck down into their burrows. A human being's natural defenses are his rights, providing him with the freedom to employ his other faculties, his eyes, ears, hands, and brain to get him out of trouble. In any emergency, people's rights are their means of survival and are more important, not less, than at other times. Nor does it make sense to surrender our own judgment to "experts" who, for many reasons, are in no way qualifiedand probably not particularly inclinedto make rational and efficacious survival decisions for us. It is certain laws that ought to be suspended during an emergency, not people's rights.
Fourth and foremost, some of the enemies of freedom will tell you, now and again, that your rights and mine, while possibly protected by the narrow and parochial Constitution, are nevertheless up for grabs under various treaties the government has made with other nations. Setting aside the question of whether the government should be allowed to do that (how many folks would be all that dismayed to see creatures like Madelyn Albright or Hillary Clinton propped up against a wall somewhere and shot for treason?) they couldn't be more completely wrong.
They will cite you a portion of the Constitution, Article VI, Section 2, that says treaties have the same clout as the Constitution itself. But here's the thing: that clause doesn't mention amendments. And amendments, by their very nature, take precedence over everything that went before them or is based on what went before them. So when Hillary tells us the UN will have our guns, now, thank you very much, we'll say, no it won't, the Second Amendment trumps any treaty you can write or sign, and, by the way, you're under arrest, under Title 18, Sections 241 and 242 for trying to violate our rights "under color of law".
Ironically, there are certain "progressive" localesthe city and county of Denver, Colorado comes to mindthat claim their status under "home rule" allows them to violate the rights of their citizenry with impunity. And there are plenty of lunatics, cretins, and crooksthe Colorado Supreme Court comes to mind, as wellwho, for one crazy, stupid, or corrupt reason or another, will back them.
But there can be no "home rule" when it comes to the Bill of Rights. That same clause, Article VI, Section 2, mandates that where the supreme law of the landmeaning, as we have seen, the Bill of Rights, not the Constitution itself, nor lesser laws, nor treatiesis concerned, "the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
It is judges, in the end, not bureaucrats or cops, who enforce the law.
Fifth and foremost (I'l bet you thought we were through with all that), there is an excellent reason why those in power should be interested in seeing the Bill of Rights as a series of laws that must be enforced, not simply rules to be gotten around, somehow. The first ten amendments were an absolute condition, imposed on the Federalists by the Anti-Federalists, on which ratification of the remainder of the Constitution depended. If you blow one, Mr. President, Mr. Governor, Mr. Mayor, then you break the deal, the Constitution is over with, and the whole house of cards comes crashing down. And since your authority is contingent upon the Constitution, you're out of power and out of luck.
These are the rules to which you, by your own actions, have been bound. They're your rules, Mr. President, Mr. Governor, Mr. Mayor, not mine, but by all that's sacred to anybody, you will abide by them.
For those of you who've never held a job in the private sector, let me make it very plain. No more Second Amendment (just to choose a single example), no more Bill of Rights. No Bill of Rights, no more Constitution. No Constitution, no more Mr. President, Mr. Governor, Mr. Mayor. No more you. It may be the legal equivalent of Windows Vista, but you won't like living in a country without an operating system.
With the rest of us.