A Constitutional Tune-Up

A Constitutional Tune-Up

©2021  Ross Williams

 

 

 

 

I periodically get into discussions with neophytes who insist that the purpose of a limited-power government such as ours is to take cradle-to-grave care of its people.  The excuse usually used to justify this is that we’re the richest nation on the planet and, after all, “other countries do it!”  No-o-o-o, I remind them, other countries do not do it, regardless of what their press releases claim.  No matter which nation they point to as their example of political altruism, it alwaysAlwaysALWAYS boils down to a matter of what that government can do with the money it has, who is left out of the largesse because someone is always left out, and what happens when money eventually runs short as it inevitably does.

 

I then point out that the definition of our government does not permit our government the power to do anything close to what they want our government to do − at any level of government.  Read the Constitution sometime, I tell them.  “Well, it doesn’t say they can’t,” they nearly always peevishly reply.

 

Yes, actually, it does.  While you’re reading the Constitution, pay particular attention to the 10^th Amendment.  To [very closely] paraphrase: any powers not given to the US Government do not belong to the US Government but belong instead to the States, unless prohibited to the States, or to the People.

And since the first section of the 14^th Amendment is written to deny any power to the States that does not also belong to the US Government, state and local governments can’t do those wondrous things either.  Sorry, I say, that’s the way it’s supposed to work.  If you want it to work any other way than that, with the Constitution being written the way it is written, you are simply wrong.  …which is not to say that the government will not give itself the power to abuse its power and do those things − or try to until it runs out of Other People’s Money.  It only means that both you and the government are wrong.  And if you’re okay being wrong, I’m fine saying so.  I do that with the government all the time.  Adding you to the list is not a problem.

 

The response to this is often, “Well, you just love everything about the Constitution, doncha?”  …as if that would be a bad thing.

Actually, it would be.  There are numerous errors of omission, several inexplicably vague passages, bewildering additions, and multiple holes that the most basic wisdom of the time knew damned well would be filled by power-lust and peevish political pound-of-fleshing.  While the Constitution is the best definition of government invented thus far, it is far from perfect and I have many quibbles with it.

 

First, let’s hit the horrible additions.

 

The 16^th Amendment

 

Like every other libertarian, I absolutely abhor the 16^thAM.  It takes the Constitution’s original prohibition of capitation taxes and throws it out, allowing the government to tax each individual on his income.  Unlike virtually every other libertarian, I recognize that this is, at least [and uniquely], a new government power acquired properly: by changing the Constitution to allow it.  As such, it is the final new power of government acquired properly.  New powers, both before and after, were acquired improperly: by one branch of the government seizing it and the other branches of government ignoring their responsibility to stop or invalidate the seizure.

 

Taxes are indeed the price we pay for a civilized society, but the concept of a tax on income is counter-productive to any society other than one ruled by the disproportionally wealthy.  The rich can always avoid taxes, particularly when they are rich and in politics.

 

The original libertarian mantra was “Tax less that which you want more of; tax more that which you want less of.”  When you tax income, you disincentivize self-sufficiency and promote dependence.  You don’t need to be a conspiracy theorist to figure out what kind of government wants to promote widespread dependence on government: one ruled by those who are rich and in politics.

 

The 17^th Amendment

 

The United States was a creation of the original 13 states.  The original design was for We The People to have representation in this new national government through the House of Representatives, while States were to be represented in the Senate.  Accordingly, the representatives were to be elected by the people, and the senators would be chosen by the states.  The 17thAM, direct election of senators, changed that.  No one represents states’ interests any longer in the national government − the national government created by those states.  Senators are now just as big a bunch of power whores prostituting themselves to the fickle whims of the public as their 2-year counterparts in the House.

This is not a good thing.

 

Additionally, I have issues with the 18^th Amendment, specifically that it got written at all; issues with the 21^st Amendment in that it didn’t go far enough in erasing the 18^th − it was written to allow states to effectively continue the 18^th in whole or in part as a matter of state prerogative.  …as if a citizen’s rights are subject to the whim of local government.

 

The issues − mine and others’, but mostly others’ − with the 2^nd Amendment have previously been discussed.

 

The 7^th Amendment, which guarantees trial by jury, has been emasculated in these last few generations by a class of judiciary which believes it − and only it − knows what the law is about, as if the law is owned by the government in general and judges specifically.  It is not.  The law is owned by the people and judges are nothing but a temporary placeholder orchestrating The People’s self-administration of it.  Jury nullification of law is a valid − indeed necessary − process in a constitutional republic.

 

The 25^th Amendment is little more than the codification of Palace Coup.

I also have issues with the 14^th Amendment.  It was intended [in part] to ensure that the 13thAM prohibiting slavery would be honored by the States, but it was written to require the States to honor all federally guaranteed rights up to, and including, all non-enumerated ditto.  It prohibits any State from “denying or abridging” those rights by state law.  But it has been “interpreted” to mean everything else imaginable but that.  All because it starts out, innocently enough, defining in its first sentence the concept of ‘citizen’ and then dropping that term in the second sentence in favor of ‘person’.  This has led some of the more psychotic of our “legal thinkers” [sic] to conclude that anyone from anywhere, on the planet or off, who can push, pull, drag, invade or teleport himself into some State of the United States is exactly as qualified [and sometimes moreso] to our rights than an actual citizen who was born or naturalized.

 

When asked why anyone would go to the length of defining a legal concept that was subsequently not used for any purpose in the codicil that defined the term in the first place, those who choose to abuse the ambiguity merely shrug with a conceited smirk and continue to abuse the ambiguity.

 

This leads us to the Constitution’s inexcusable, and sometimes puzzling, ambiguities.

 

General Welfare

 

Congress is tasked with writing laws that “provide for the… general welfare of the United States”.  “General” means at large, or involving the whole.  “Welfare” means well-being, or prosperity.  You’d think it would stand to reason, then, that laws which provide money to poor people and that was pulled out of the pockets of everyone else − what we optimistically term “welfare” − does not qualify as general welfare.  It is specific welfare made possible by plundering, and thus harming, the majority.  The same can be said about any of a zillion other laws which benefit a few at the expense of the rest.  It would be better for this phrase to have been left out entirely.

 

…which leads directly to:

 

Transfer Payments

 

The guys who wrote the Constitution knew full well the historic pattern of democratic governments.  They studied Greece and Rome, and knew what happened to both of them.  If, somehow, they missed that lesson, there were only too many European monarchists willing to remind the naïve democracists what was, at the time, a 2,200 year old saw:  Democracies can survive only until the majority discovers they can vote themselves a share of the treasury. 

 

Greek democracy failed specifically because it capitulated to special interests demanding public money for their own.  Roman republicanism ended in dictatorship after it devoted larger and larger shares of public funds to the Bread and Circuses buying off the restless plebeians.  The dictatorship ended when it ran out of money devoted to stipending the peasants and couldn’t make military payroll.  The frontiers got swamped with illegal immigrants no longer held back by the Legions who had been paid to do so.  We are currently enjoying the fiscal sins of both Greece and Rome: capitulating to special interests and buying off the plebeians with public funds.  So stop me if you heard this one already.

 

Why the fabled founders neglected to slip a proscription against robbing Peter to pay Paul in between the similar denials of ex post facto laws and bills of attainder is beyond comprehension.  They had to have known it would happen and its non-prohibition can only be attributed to republican malpractice − ineptitude in the creation of a republic.

 

Constitutional Interpretation

 

The word “interpret”, like the phrase “separation of church and state”, does not exist in the Constitution.  There is zero allowance for anyone in government to “interpret” the Constitution.  Interpretation is the act of concluding that 2+2=5 because − in this rare and specific instance − we really really really need to have 5 of whatever.  And when the government concludes that 2+2=5 in one rare and specific instance, nearly always when assessing its own powers, it only serves to inspire the proliferation of that rare and specific circumstance.  The circumstance is no longer rare and specific; it is generalized and ubiquitous.  The end result is that the Constitution is back-handedly amended by the expedience of power-whoring.

 

All government agents, on the other hand, from county dogcatcher on up, are required by our Constitution to take an oath to support the Constitution.  Adding a few words like “as written” or “without embellishment or flourish” would have helped tremendously.

 

The Entire 1^st Amendment

 

The 1stAM proscribes only an act of Congress abridging freedom of speech, press, assembly or religion.  It leaves open the power of a judge, or a state or local government, or some agency or office of any governmental jurisdiction, doing same.  Now, granted, the 14thAM was written to incorporate the states into the Bill of Rights, but few if any courts are willing to allow that clear meaning to be imposed.  It would interfere with the power of government to make free citizens of a free country sit down and shut up like the chattel all government wishes its people to be.  If you can’t interrupt a city council meeting by bawling out every self-serving asshole on the board, then you don’t have freedom of speech.  If the City Council can’t conduct business with people exercising their free speech, then perhaps they should be listening to the people who elected them instead of doing what they want.

 

Ditto imperious judges in [and out of] court, ditto DMV twats who can’t bother to outrun a glacier, ditto cops during a traffic stop…

 

Lay and Collect Taxes/"Power of the Purse"

 

The number of subjects upon which Congress is legitimately allowed to write laws is extremely limited.  There are many many many American citizens’ activities that Congress is simply not given permission to touch.  Seat belt usage, drinking age, smoking age, taking recreational drugs at any age, participating in a mandatory government pension system or a mandatory government health insurance program, to name just a very scant few.  Absolutely no power was given to Congress to compel or deny these things.  Yet Congress has done all these things.  And many many many many more.

 

With regard to the last two in that list, they were accomplished by wrapping a tax around the power grab.  The Hughes Court, in 1935, ruled that Congress does NOT, in fact, have the power to create an old age pension system and widows-n-orphans charity called Social Security.  However, it does have the power to tax the American people, and to spend the money it collects.  Therefore, if Congress taxes people for an old age pension system, and then spends the money collected on that old age pension system, Congress can − according to the USSC − do what they are not allowed to do.

 

The Roberts Court about a decade ago pulled the same psychotic rabbit out of the same threadbare hat and claimed that the power of Congress to create an Obamacare does not exist… unless the financial penalties for not playing along are considered a tax.

 

Fiscal Profligacy

 

The creation of the United States owes itself to the age-old practice of government spending more money than it has, often because it had spent its last money stupidly.  The English embarked upon a series of financially disastrous wars with France which, after their temporary conclusion, had to be paid for.  England did this by taxing the North American Colonies for everything under the sun and most things under the moon, which inspired those colonies in what became the United States to demand representation in Parliament before such taxes could be considered legitimate.  For its own part, France discovered that they also had to pay for those previous wars against England before Napoleon could embark on new wars against everyone else, and they financed their prior wars through another common means: selling off its territorial holdings.  The Louisiana Purchase by the brand new United States paid for French wars against the English of the prior generation and allowed France to try conquering the rest of Europe.

 

The dangers of fiscal profligacy to a government were not a secret to those who defined our governance; yet they failed to include any controls on how much debt the government would be allowed to hold, or how much deficit could be added, and under what conditions.  This is another example of their republican malpractice; they knew the danger firsthand and they ignored it.

 

Congressional Bribery

 

Congress was not given the power to write a law compelling a State to adopt specific legislation, and the 10^th Amendment has consistently been read to hold that line.  Congress discovered early on that it could sidestep their powerlessness in coercion of the States by attaching money to their law.

 

Wrong: “You States must pass a law setting a drinking age at 21.”

Right: “If you States pass a law setting your drinking age at 21, we will give you free federal money [that we took from your people in the first place, but that’s beside the point].”

 

The only problem is, the “right” solution is the confiscation of the same unauthorized power smoothed over with the bribe of one government agency by another.  Because bribery makes everything better and more ethical.

 

Declare War

 

Congress is the only branch of government allowed to declare war, while the President is the Commander in Chief.  Being the CinC requires the authority to direct soldiers into armed conflict, i.e., waging war.  Being refused the power to direct soldiers into armed conflict means he isn’t really the CinC.

 

Waging war is not the same as declaring war − a fact that many people, including most libertarians, fail to grasp.  Most of the wars in human history were waged without being declared, and the wars in US history are no exception.  It would stand to reason that the power of Congress to declare a war is, in the US Constitution’s system of checks and balances, nothing more than the power of Congress to compel the President to wage a war whether he wants to or not.  This, in fact, is essentially the ruling of the USSC at the time of Jefferson’s undeclared First Barbary War.  It is worth noting that most of the justices on the court at that time were among the legion whose opinions were sought by those who were actually writing our Constitution.  But the whole thing could easily have been stated much more clearly.

 

The 4th Amendment

 

Any first-year law student could tell you that a warrant is the legal writ which describes the reason for the government taking an action against an individual.  And any first-year law student could tell you that without a warrant citing the reason for a government action, the government action is not reasonable; it is instead, by definition, authoritarian.  This holds true for searches as well.  Without a warrant you cannot have a reasonable search.  It is only after years of practicing law and becoming judges and legislators that those first-year law students are able to come up with endless excuses as to why the government no longer needs a documented reason to conduct a reasonable search.  This places TSA checkpoints, courthouse pocket and briefcase dumping, and roadway “implied consent” in with other paradoxical sentiments like up is down, black is white, and water is not wet.

 

The government needs a warrant citing probable cause before it can search, inspect, or even quiz harshly any citizen for any reason at any time at any location.  I honestly do not know how this could have been stated any more clearly, but obviously it needed to have been.

 

Advise and Consent

 

Keeping concentrated power out of the hands of a single individual was extremely important to the writers of our Constitution, but they failed to follow through in several key areas.

 

The Senate is tasked with being the adults in the room for many of the president’s powers.  They are required to advise the president, and provide final consent on his foreign policy deals and his political appointments.  This, in effort to prevent a president from becoming an imperial officeholder … such as one ruling “with a phone and a pen”.  This check on executive power would be solidified if, when a super-majority of the Senate decides that a foreign policy deal or political appointee is no longer serving the needs of the nation, the Senate could also remove their consent.

 

Sole Power of Legislation

 

The first sentence of the US Constitution after the mission statement is that all powers of legislation are owned by Congress.  One would think this to be, therefore, a fairly important matter.  Yet Congress continually delegates its legislative authority to the Executive Branch, which is constitutionally tasked only with enforcing the laws that were legitimately passed.  No one seems to care that Congress was not given the defined power to delegate its legislative authority to begin with.  The usual reason given for the delegation is that Congress doesn’t know, for example, how many acres of swampland being drained to pave over for parking lots is too many, and whether or not it’s going to hurt the habitat of a local garden slug.  The Environmental Protection Agency, though, does know these things [they claim] so “let’s give the power to control swampland drainage to the EPA!”  The notion that swampland drainage isn’t a defined power of government in the first place never seems to cross anyone’s mind.

The end result is that Congress writes a law giving their legislative power to [in this example] the EPA, which does not have legislative power, but administrative power.  So the EPA creates the administrative equivalent of law, which is called regulation, and which consolidates effective legislative authority under the president in contravention of the Constitution, governing how many acres of swampland a property owner can drain for a parking lot without being in violation.  The best part of this, at least for authoritarian apologists, is that it completely ignores the 5thAM right of property in addition to exceeding the non-existent power of government to control swampland.  And because regulations aren’t laws, they don’t need to be enforced in the innocent until proven guilty manner.  Regulations can be enforced in the historic standard of prior government compulsion that we sought to escape in our constitutional republic: you’re guilty until you prove yourself innocent.

 

“The President Shall Have the Power To…”

 

Along with abdicating legislative power to executive branch administrative agencies, Congress is also guilty of handing carte demi-blanche to the president himself in far too many areas that Congress has the sole constitutional authority over, or which no power was granted at all.  Congress was given sole authority over immigration and naturalization, yet they gave the president the power to instantaneously [if not arbitrarily] decide which nation[s] to close our borders to.  There is no authority at all given to any branch of government to declare national emergencies, yet Congress invented one and gave it to the president.

 

This must end.  …which leads us to:

 

Executive Orders

 

There is perhaps nothing more dictatorially sinister in a constitutional republic than one person making edicts.  Unless it’s one person making edicts when he also has the authority and apparatus to enforce those edicts.  That would be what we have with Executive Orders.  An infamous prior Chief Executive who knew so much about Constitutional Law that he could teach it in law school appears to have unearthed an elusive invisible ink addendum to Article II of the Constitution which allowed him to rule with “a phone and a pen” through Executive Orders.  And he did so, every chance he got since, for most of his presidency, his Congress was unwilling to cooperate with his power lust.

No one else has seen this cryptopower, however, and its use is close to the gravest and most dangerous abuse of power possible in a constitutional republic built upon democracy.  It should, at a minimum, be considered an impeachable offense if not an outright, immediate and mandatory cause for removal from office.  And because the political scholars who defined our government were well aware that the urge toward tyranny was so powerful, their complete lack of preparation for its inevitable emergence is another example of republican malpractice.

 

While we’re on the subject of impeachable offenses…

 

Impeachment

 

It was barely a decade from the adoption of our Constitution before one political party momentarily in charge attempted to criminalize dissent.  Failure to conceive that the process of impeachment might be used simply to oust an official who was disliked by opposition politics with a temporary majority in the House, masking their insolence with a façade of “high crime”, is more republican malpractice.  Of its four uses against a president, three have been impeachments of pique.  Only one was used to address a misuse of the office itself − a president using his position as president in attempt to manipulate a civil case against him extrajudicially and which would have been met under any other circumstance with, at most, summary judgment.

 

To rely upon a simple majority to initiate impeachment is, as we’ve seen, a landscape for political temper tantrum.  Impeachment needs to have a super-majority to indict as well as convict.

 

Article V

 

The US government was a creation of the state governments, and defined in a document called the Constitution.  The States wrote the Constitution; they wrote it so that either a super-majority of the States, or Congress with the blessing of a super-majority of the States can change it.  But in order for the States to change the Constitution on their own initiative, they must have the concurrence of Congress.

 

Congress doesn’t want anyone but Congress changing the powers of the federal government [duh!], and so they have sat on State-initiated Constitutional changes, sometimes for over a century.  Either require Congress to act on these petitions with dissolvement of the body for failure, or exclude Congressional concurrence altogether.  I prefer the latter, but if clearing Congress of slugs who refuse to do their Constitutional duty is what it will take … I’m fine with it.

 

Immunity and Liability

 

Being a government employee in a Free Nation, and having any amount of authority over Free People, is − or is supposed to be − a trust far and away more sacred than any held by a high priest.  Misuse of that authority for any reason upon a Free Citizen has always been dismissed by citing “immunity”.  “It doesn’t matter that the City Clerk’s office has held up, and ultimately denied, procedural permissions for a trivial undertaking; the clerk thought he was doing the right thing and cannot be held accountable.”

Yeah, but he wasn’t doing the right thing, and lack of liability only promotes similar abuses in the future.  Leaving a Free Citizen to hold the bag when government abuses its power and allowing the government to skip off with no more than a scowl directed its way [and usually not even that] is what authoritarian governments do.  This abdication of responsibility is typically rationalized by “I was just following procedures/orders”.  Governments of Free Peoples must punish − immediately − the government agents who abuse their power.  Individual government agents, a city clerk with a personal beef against a resident wishing to obtain a building permit, a cop flush with a gun and a badge, legislators voting for laws in excess of defined powers, and even judges who validate those laws, must be personally liable for damages incurred by abuses of government power in any Free Nation.

The counter-argument that this would inhibit the government doing its job is exactly the point.  In a free nation such as ours was designed, defined and intended to be, the government’s job is exceptionally scant.  The government should not be doing most of what it does.  If this is what it takes to stop them from doing what they weren’t given the power to do, then so be it.

 

Ignorance of the constitutional limitations on government power cannot be any more of an excuse for government actors than ignorance of the law is for citizens.

 

Redistricting

 

The Constitution requires a census be taken every ten years.  Among the legitimate uses of the census is to determine the reapportionment of Representation in the House.  Congressional districts are thus likely to be redrawn every decade, and political power-whoring of a specific form called gerrymandering is the result.  Congressional districts redrawn by the State’s legislature take on the appearance of snakes slithering across the map for the purpose of minimizing representation of the opposing political party and maximizing the representation of their own political party.

 

Requiring that all congressional districts be drawn along existing political or administrative boundaries − townships, cities, counties, zip codes even − and which may not be more than 5% wider than they are tall [owing to the geography of the State’s territory] would alleviate most of this problem.

 

Licensing

 

A common libertarian mantra is that a privilege is a right the government has stolen from its people and is willing to sell back to them for a price.  The exacted price for exercising a right is attached to a license.  A license is government permission to do something that the government has no defined authority to prevent a citizen from doing in any event.

 

However, the government effectively prohibits citizens from taking advantage of their rights because the cost of obtaining government permission to undertake rightful activity is often prohibitive.  There have been a number of economic studies suggesting that among the largest impediments to pulling people out of poverty is the licensing, registration, and other administrative costs of government which prevent someone with a skill but no money from starting a business selling that skill to others so that he might earn money and stop playing the Paul Peter was robbed to pay.

 

If government insists on licensing, registering, permitting, inspecting or otherwise tallying the activity of its people, it may not impose any cost for that “service” [sic] upon the people being licensed, registered, et cetera.  If that makes local, state and federal governments prioritize which of its citizens’ activities actually need such close monitoring and which are only being used as convenient cash cows, then it will be more as it should be: people being free of government imposition in going about their lives.

 

And being free of government imposition, making it harder for a government of a free people to govern at will, removing the impulse to govern by intemperate whim, lessening the mobbery of democratic undertakings, is the ultimate point of every single one of these necessary repairs.