September 26, 2009
By rendering the labor of one, the property of the other, they cherish pride, luxury, and vanity on one side; on the other, vice and servility, or hatred and revolt.
~ James Madison
“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.”
~ Lysander Spooner
Today, 17 September 2009, is Constitution Day. There will be paeans, abundant commentary and church-like observances of the glories of this document in making us the most blessed nation on planet earth. This essay suggests a contrarian thesis. The Constitution is an enabling document for big government. Much like the Wizard of Oz, the man behind the curtain is a fraud. In this case, for all the sanctimonious handwringing and the obsequious idolatry of the parchment, it sealed the fate of our liberties and freedoms and has operated for more than 200 years as a cover for massive expansion of the tools and infrastructure of statist expansion and oppression. Among the many intellectual travels I have undertaken, this is one of the most heart-breaking I have ventured on. I want to acknowledge the compass-bearers who sent me on this journey: Kenneth W. Royce (aka Boston T. Party) and his seminal book, The Hologram of Libertyand Kevin Gutzman’s Politically Incorrect Guide to the Constitution. For most of the political spectrum in America, the document represents their interpretation of how to make this mortal coil paradise. Even in libertarian circles, it is taken as an article of faith the Constitution is a brilliant mechanism to enlarge liberty and keep government at bay. That is a lie.
The document was drafted in the summer of 1787 behind closed doors in tremendous secrecy because if word leaked out of the actual contents and intent, the revolution that had just concluded would have been set ablaze again. They were in a race against time and did everything in their power to ensure that the adoption took place as quickly as possible to avoid reflection and contemplation in the public square that would kill the proposal once the consequences of its agenda became apparent. They were insisting that the states ratify first and then propose amendments later. It was a political coup d’état. It was nothing less than an oligarchical coup to ensure that the moneyed interests, banksters and aristocrats could cement their positions and mimic the United Kingdom from which they had been recently divorced.
The original charter of the drafters was to pen improvements to the existing Articles of Confederation. Instead, they chose to hijack the process and create a document which enslaved the nation. Federalist in the old parlance meant states rights and subsidiarity but the three authors of the fabled Federalist Papers supported everything but that. Their intent and commitment was to create a National government with the ability to make war on its constituent parts if these states failed to submit themselves to the central government.
As Austrian economists have discovered, bigger is not necessarily better. The brilliant and oft-dismissed Articles of Confederation (AoC) and Perpetual Union are a testament to voluntarism and cooperation through persuasion that the Constitution disposed of with its adoption. Penned in 1776 and ratified in 1781, the spirit and context of the Articles live on in the Swiss canton system and are everywhere evident in the marketplace where confederationist sentiments are practiced daily. The confederation’s design divines its mechanism from what an unfettered market does every day: voluntary cooperation, spontaneous information signals and the parts always being smarter than the sum A. confederation according to the Webster’s 1828 dictionary is:
- The act of confederating; a league; a compact for mutual support; alliance; particularly of princes, nations or states.
I would advise the readership to use the 1828 Webster’s dictionary to accompany any primary source research you may undertake to understand American (& British) letters in the eighteenth century. It is the source for the contemporary lexicon. It is even availableonline now.
Here is a simple comparison of the two organizing documents:
Articles of Confederation
Congress could request states to pay taxes
Congress has right to levy taxes on individuals
No system of federal courts
Court system created to deal with issues between citizens, states
Regulation of trade
No provision to regulate interstate trade
Congress has right to regulate trade between states
No executive with power. President of U.S. merely presided over Congress
Executive branch headed by President who chooses Cabinet and has checks on power of judiciary and legislature
13/13 needed to amend Articles
2/3 of both houses of Congress plus 3/4 of state legislatures or national convention
Representation of states
Each state received 1 vote regardless of size
Upper house (Senate) with 2 votes; lower house (House of Representatives) based on population
Raising an army
Congress could not draft troops, dependent on states to contribute forces
Congress can raise an army to deal with military situations
No control of trade between states
Interstate commerce controlled by Congress
Disputes between states
Complicated system of arbitration
Federal court system to handle disputes
Sovereignty resides in states
Constitution the supreme law of the land
9/13 needed to approve legislation
50%+1 of both houses plus signature of President
Note that the precept of individual taxation was an end-run against state sovereignty from the very beginning. If the Congress does not wish to violate state sovereignty, then they will simply prey on the individuals in the states. It should be obvious that the AoC was not a recipe for government employees from top to bottom to use the office to enrich themselves so a scheme was afoot to precipitate and manufacture dissent over the present configuration of the central government apparatus which for all intents and purposes barely existed. The AoC was intolerable to a narrow panoply of interests and the Federalist Papers appeared between October 1787 and August 1788 to plead the case for a newer form of “Republic” authored by three individuals: James Madison, John Jay, and Alexander Hamilton. The British had sued for peace in 1783 and the AoC were still in effect until 1790. Time was ticking to erect the new government apparatus that would strengthen the central government to eventually mimic the very tyranny which caused British North America to put the English Crown in the hazard. The Anti-Federalists rose up in response and provided what I consider one of the most splendid and eloquent defenses of small government penned in our history.
When the Constitutional Convention convened on 1787, 55 delegates came but 14 later quit as the Convention eventually abused its mandate and scrapped the AoC instead of revising it. The notes and proceedings of the cloistered meeting were to be secret as long as 53 years later when Madison’s edited notes were published in 1840.
The Anti-Federalist Brutus avers in Essay I in October 1787:
“But what is meant is, that the legislature of the United States are vested with the great and uncontroulable powers, of laying and collecting taxes, duties, imposts, and excises; of regulating trade, raising and supporting armies, organizing, arming, and disciplining the militia, instituting courts, and other general powers. And are by this clause invested with the power of making all laws, proper and necessary, for carrying all these into execution; and they may so exercise this power as entirely to annihilate all the state governments, and reduce this country to one single government. And if they may do it, it is pretty certain they will; for it will be found that the power retained by individual states, small as it is, will be a clog upon the wheels of the government of the United States; the latter therefore will be naturally inclined to remove it out of the way. Besides, it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way.”
The conflict was brewing between the Jeffersonians among the individualists and the Hamiltonian collectivists. The rhetorical lines were drawn and the fate of the nation eventually slid into the camp of the Nationalists.
George Washington wrote to John Jay on 1 August 1786:
“Many are of opinion that Congress have too frequently made use of the suppliant humble tone of requisition, in applications to the States, when they had a right to assume their imperial dignity and command obedience. Be that as it may, requisitions are a perfect nihility, where thirteen sovereign, independent[,] disunited States are in the habit of discussing & refusing compliance with them at their option. Requisitions are actually little better than a jest and a bye word through out the Land. If you tell the Legislatures they have violated the treaty of peace and invaded the prerogatives of the confederacy they will laugh in your face. What then is to be done? Things cannot go on in the same train forever. It is much to be feared, as you observe, that the better kind of people being disgusted with the circumstances will have their minds prepared for any revolution whatever. We are apt to run from one extreme into another. To anticipate & prevent disasterous contingencies would be the part of wisdom & patriotism.”
It appears even the much admired Washington was having none of the talk of independence and wanted a firm hand on the yoke of the states to make them obey their masters on high. Washington’s behavior in the Whiskey Rebellion cast away any doubts of the imperious behavior of the central government a mere four year after the adoption of the Constitution.
Patrick Henry gave the firmest defense of the skeptical posture when he questioned the precarious position the Constitution put to the state’s sovereignty on 5 June 1788 at the Virginia Ratifying Convention (the savvy Founding Lawyers ensured that the process of ratification was sped along by bypassing the bicameral house requirements and simply asking the states to conduct ratifying conventions):
“How were the Congressional rights defined when the people of America united by a confederacy to defend their liberties and rights against the tyrannical attempts of Great-Britain? The States were not then contented with implied reservation. No, Mr. Chairman. It was expressly declared in our Confederation that every right was retained by the States respectively, which was not given up to the Government of the United States. But there is no such thing here. You therefore by a natural and unavoidable implication, give up your rights to the General Government. Your own example furnishes an argument against it. If you give up these powers, without a Bill of Rights, you will exhibit the most absurd thing to mankind that ever the world saw — A Government that has abandoned all its powers — The powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a Bill of Rights — without check, limitation, or controul. And still you have checks and guards — still you keep barriers — pointed where? Pointed against your weakened, prostrated, enervated State Government! You have a Bill of Rights to defend you against the State Government, which is bereaved of all power; and yet you have none against Congress, though in full and exclusive possession of all power! You arm youselves against the weak and defenceless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity? What barriers have you to oppose to this most strong energetic Government? To that Government you have nothing to oppose. All your defence is given up. This is a real actual defect. . . “
The Bill of Rights as we know them today were first introduced by James Madison in 1789 in response to the fears the emerging Constitution caused among the free men in these united States. They eventually came into effect on December 15, 1791. The Federalists were desperately opposed to the adoption of the Bill of Rights being insisted upon by Patrick Henry, Thomas Jefferson and other skeptics of central governance. As Brutus again so cleverly pointed out in the Anti-Federalist papers #84:
” This will appear the more necessary, when it is considered, that not only the Constitution and laws made in pursuance thereof, but all treaties made, under the authority of the United States, are the supreme law of the land, and supersede the Constitutions of all the States. The power to make treaties, is vested in the president, by and with the advice and consent of two-thirds of the senate. I do not find any limitation or restriction to the exercise of this power. The most important article in any Constitution may therefore be repealed, even without a legislative act. Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought.
So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are wilfully endeavoring to deceive, and to lead you into an absolute state of vassalage (emphasis mine).”
The Bill of Rights nominations from the respective sovereign states originally numbered near 200 and the Founding Lawyers saw fit to include twelve (the two concerning apportionment and Congressional pay failed to pass) after much bickering especially by the most monstrous worthy of the time, Alexander Hamilton. A brilliant mind coupled with all the political knife-fighting skills needed to dominate the proceedings, Hamilton made sure that the tools of oppression and a financial yoke would be decorating our necks in perpetuity. Small solace can be taken in the aftermath of the duel between Hamilton and Burr on 11 July 1804 in that it took him close to a day to die.
Alexander Hamilton tipped his intellectual hand in a speech to the Constitutional Convention concerning the United States Senate, 06/18/1787 (quoted in the notes of Judge Yates):
“All communities divide themselves into the few and the many. The first are the rich and the well-born; the other the mass of the people … turbulent and changing, they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the Government … Nothing but a permanent body can check the imprudence of democracy.”
I am no fan of democracy as I see it as nothing more than a transformational accommodation to tyranny over time but one can infer from this quote that Hamilton fancied a class of people more equal than others who would have a disproportionate access to the levers of power over the great unwashed. Again, I am suggesting that the Constitution was a document designed from the beginning as a means to rob constituent and subsidiary parts of sovereignty and subject these subordinate elements to a national framework which made their position subservient to the Federal government. The desire of the Federalists was to install a national framework and cement the structure through the machinations of national banking, franking of a currency and debt creation. Keep in mind that all of the nattering on about the Federal Reserve today is a complaint against a Constitutional Frankenstein monster in its fourth iteration since the other attempts at national banks failed. You can guess who picked up the tab.
The Bill of Rights was finally passed on 15 December 1791 but it was much diluted and purposefully weaker and more ambiguous about the central government’s implied and explicit powers.
The Constitution took effect on 4 March 1789 with 11 states under it and two states not submitting ratification. North Carolina did ratify it when a promise of a future Bill of Rights was assured. Rhode Island refused and was the only state to put the Constitution to a popular vote where it failed on 24 March 1788 by an 11—1 margin. They eventually ratified it.
Hamilton now had the ways and means to make real his storied dream: “A national debt, if it is not excessive, will be to us a national blessing.” The moneyed interests saw the advantage of monetizing the debt. By assuming the state’s debts at the national government level, a means of controlling commerce and taxation became an implied task of the central government. This may have been the first incident of the debtors from the Revolutionary War convincing their Hamiltonian allies that if they had the national government bear the debt and relieve them of responsibility, this could be used as the means to establish the coveted national bank to start the issuance of government currency not to mention the driver for increased taxation.
All the puzzle pieces had finally locked into place. Royce eloquently explains what has transpired in Hologram of Liberty: “To put a u2018gun’ in the hands of the new national government was the primary object, the great sine qua non, of the Constitution. A comprehensive de jure authority of Congress backed with de facto guns.” The Confederation is defeated and the long train of usurpation, centralization and tyranny leaves the station for what has become American history.
Hamilton’s machinations and influence probably single-handedly turned the product of this secret confab into one of the most successful instruments of political oppression before even the creation of the USSR. What makes it even more sublime as a tool of big government is the sophisticated propaganda and hagiographic enterprise which has both spontaneously and through careful planning suborned the public’s skepticism of the nature of the machine erected to control their behavior, which has resulted in an almost religious observance of all things Constitutional. Carefully cultivated over two hundred years, this religious idolatry had certainly fogged the thinking of this writer for most of his adult life. This sleeper has awakened.
Ask yourself this question: have the robed government employees who read the Constitutional tea leaves for the most part defended individual liberty or have they rubber-stamped the exponential growth of power and control of the colossus that sits astride the Potomac?
“Our constitutions purport to be established by ‘the people,’ and, in theory, ‘all the people’ consent to such government as the constitutions authorize. But this consent of ‘the people’ exists only in theory. It has no existence in fact. Government is in reality established by the few; and these few assume the consent of all the rest, without any such consent being actually given.”
~ Lysander Spooner