The Constitution: Myths and Realities

It is with regret that I mention two grave errors in Abraham Lincoln’s Gettysburg Address. The speech begins with this: “Four score and seven years ago [1776] our fathers brought forth, upon this continent, a new nation”. Lincoln later characterizes the government as being “of the people by the people for the people”. Both statements are dead wrong.

Lincoln is far from the only influential person to have perpetrated myths about the founding of the United States and the character of the Constitution. These many myths help to sustain the unconscionably oppressive regime that now governs the United States.

It is the purpose of this essay to explode the myths, and to suggest ways to end the oppression. Read on:

I. The Constitution of 1787: A Blueprint for a New Nation

II. The Constitution As a Contract for a New Nation

III. A Contract between the States or the People?

IV. The Abrogation of the Constitutional Contract

V. The Bases of Abrogation

A. The Framers’ Fatal Error
B. The New Deal and Beyond

 VI. Possible Remedies

A. The Benedict Option
B. Geographic Sorting
C. Convention of the States
D. Departmentalism
E. Preemptive (Cold) Civil War
F. Secession
G. A Negotiated Partition of the Country
H. Coup

 VII. A Radical View of the Constitution

In addition, the 21 pingbacks at the bottom of this article lead to complementary and supplementary material, most of which I omitted from this article because it exceeds 15,000 words as it is.

I. THE CONSTITUTION OF 1787: A BLUEPRINT FOR A NEW NATION

As I will explain, the Constitution of the United States was a contract between the States that ratified it. It was written so that the States could clearly understand the contract, which became binding not only on the States but also on their creature, the national government. (I use “national” throughout instead of “federal” because the Constitution created a new government of strictly limited but national power.)

This written Constitution — not the national government or any branch of it — was to be the supreme law of the land. As the supreme law. It was meant to be a bulwark against the expansion of the powers of the national government beyond those expressly granted to it by the Constitution.

There are many influential parties, justices of the Supreme Court included, who believe that the Constitution means what a majority of the Court says it means. But, as Randy Barnett puts it, the Supreme Court

does not have the power to change the written Constitution, which always remains there to be revived when there is a political and judicial will to do so. For example, after the Supreme Court gutted the Fourteenth Amendment during Reconstruction, it remained a part of the written Constitution for a future more enlightened Supreme Court to put to good use. By the same token, the current Supreme Court can still make serious mistakes about the Constitution. Because the Constitution is in writing, there is an external “there” there by which to assess its opinions.

The real meaning of the Constitution is fixed until it is amended through the process prescribed in the Constitution itself. It is not, unlike the British constitution, a do-it-yourself project. The American Constitution was designed by master architects, who meant it to be executed as it was written. It is a blueprint, not a Rohrschach test. Liberty is still possible under the American Constitution because it is still intact, waiting to be read and enforced correctly.

II. THE CONSTITUTION AS A CONTRACT FOR A NEW NATION

James Madison, known as the Father of the Constitution, characterized it as a contract, though he used an older word, namely, compact:

The [third Virginia] resolution declares, first, that “it views the powers of the federal government as resulting from the compact to which the states are parties;” in other words, that the federal powers are derived from the Constitution; and that the Constitution is a compact to which the states are parties. [Report on the Virginia Resolutions to the Virginia House of Delegates, January 1800]

What else could it be? Romantic rhetoric to the contrary notwithstanding, the Constitution is not the equivalent of the Ten Commandments or the Bible, handed directly from God or inspired by Him. The Constitution represents a practical arrangement through which the States that ratified it agreed to establish a national government with some degree of power over the States, but power that was carefully limited by enumeration.

The main purposes for establishing the national government were to provide for the common defense of the States, to ensure the free flow of commerce among the States, and to present a single face to the rest of the world in matters of trade and foreign policy.

These new arrangements represented a drastic change from the Confederation of 1781-89, which was more like a debating club or the United Nations. The Articles of Confederation and Perpetual Union had many provisions resembling those of the Constitution, but their enforcement was relegated to the Congress of the Confederation, that is, to the representatives of the States, each of which had one vote. A committee of the States could act when Congress was not in session, but only on the authority of nine of the thirteen States. In fact, all significant acts, including the creation and maintenance of armed forces and declarations of war required the approval of nine of the thirteen States.

The only way to revise this ponderous arrangement was to tear it up and start over again. That was not the original aim of the delegates from twelve of the States who convened in Philadelphia the summer of 1787 with the aim of amending the Articles. (Rhode Island boycotted the convention in Philadelphia and was the last State to ratify the Constitution.) But that is what they did.

The Congress of the Confederation agreed to submit the proposed Constitution to the States for ratification. And when eleven of the States had ratified it, the Congress declared the new Constitution operative. At that point, the Confederation ceased to exist. So much for “perpetual union”.

The Constitution created a new nation, in which membership was voluntary. Non-ratifying States would not have been members of the new nation.

If the Constitution had not been ratified by nine States, it would have gone into the trash bin of history. The Confederation might have stumbled along as an ineffectual conclave of thirteen doggedly independent States. Or it might have been abandoned altogether, leaving thirteen disunited States in its wake, some of which might have formed other nations, trading partnerships, or mutual-defense alliances.

III. A CONTRACT BETWEEN THE STATES OR THE PEOPLE?

A crucial and often misrepresented aspect of the Constitution is the role of the States in its adoption. There is a prevailing view that the Constitution was adopted by “the people”, not by the States. No State or States, therefore, may withdraw from the constitutional contract because it is not theirs to begin with.

This view is taken because it argues against secession. Anti-seessionism is a religion whose adherents either hold a mistaken, romantic view of the genesis of the nation or dislike the word “secession” because of its association with the slave-holding States that did in fact secede.

The idea that the Constitution is the creature of “the people” is balderdash. It is balderdash of a high order because it was lent credence by none other than John Marshall, Chief Justice of the Supreme Court from 1801 to 1835, whose many opinions shaped constitutional jurisprudence for better and for worse. Consider this passage from Marshall’s opinion in McCulloch v. Maryland (1819):

The Convention which framed the constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might “be submitted to a Convention of Delegates, chosen in each State by the people thereof, under the recommendation of its Legislature, for their assent and ratification.” This mode of proceeding was adopted; and by the Convention, by Congress, and by the State Legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in Convention. It is true, they assembled in their several States–and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments.

Marshall argues against a strawman of his own construction: the insinuation that the Constitution was somehow ratified by “the American people”. He does not come out and say that, but he implies that holding the ratifying conventions in the various States was necessary because of the impracticality of holding a national convention of “the people”. The fact is that the conventions in the States were of modest size. The table given here shows that the total number of delegates voting yea and nay in each State ranged from a low of 26 to a high of 355, for an average of 127 per State. This was hardly anything like “one common mass” of the American people. The 1,648 delegates who voted in the thirteen conventions represented about two-tenths of one percent of the free white males aged 16 and older at the time (and presumably far less than one-half of one percent of the free-white males considered eligible for a convention).

The fact is that the ratifying conventions were held in the States because it was left to each State whether to join the new union or remain independent. The conventions were conducted under the auspices of the State legislatures. They were, in effect, special committees with but one duty: to decide for each State whether the State would join the union.

This view is supported by Madison’s contemporaneous account of the ratification process:

[I]t appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act. [The Federalist No. 39, as published in the Independent Journal, January 16, 1788]

Marshall’s fiction is compounded by the familiar image of the first words of the Preamble of the Constitution:

“We the People” is a brilliant public-relations ploy, but it has nothing to do with the facts of the case. The ratification of the Constitution was not the “will of the people” of the entire nation. It was the will of a tiny fraction of the people of each State that ratified it, and which might well have chosen to reject it.

IV. THE ABROGATION OF THE CONSTITUTIONAL CONTRACT

From the moment of the creation of the national government in 1789, that government was bound to honor the constitutional contract from which it arose. The national government has breached the contract by exceeding the scope of power granted to it by the constitutional contract. Immense, illegitimate power has accrued to the national government through the generations because of myriad laws, regulations, and court rulings that violate the real Constitution and distort its meaning.

The constitutional contract provides for:

  • primacy of the federal Constitution and of constitutional laws over those of the States
  • collective obligations of the States, as the united States, and individual obligations of the States to each other
  • structure of the national government — the three branches, elections and appointments to their offices, and basic legislative procedures
  • powers of the three branches
  • division of powers between the States and the national government
  • rights and privileges of citizens
  • a process for amending the Constitution.

The principles embodied in the details of the contract are few and simple:

  • The Constitution and constitutional laws are the supreme law of the land, within the clearly delimited scope of the Constitution. As the ardent nationalist Alexander Hamilton explains in Federalist No. 33, the Constitution “it expressly confines this supremacy to laws made pursuant to the Constitution”.
  • The national government has no powers other than those provided by the Constitution.
  • The rights of citizens include not only those rights specified in the Constitution but also any unspecified rights that do not conflict with powers expressly granted the national government or reserved by the States in the creation of the national government.

Moreover, the “checks and balances” in the Constitution are meant to limit the national government’s ability to act, even within its sphere of authority. In the legislative branch neither the House of Representatives nor the Senate can pass a law unilaterally. The president, in his primary constitutional role as head of the executive branch, must sign acts of Congress before they can become law, and may veto acts of Congress — which may, in turn, override his vetoes. From its position atop the judicial branch, the Supreme Court is supposed to decide cases “arising under” (within the scope of) the Constitution, not to change the Constitution without benefit of an amendment adopted as expressly provided in the Constitution.

The Constitution itself defines the sphere of authority of the national government and balances that authority against the authority of the States and the rights of citizens. Although the Constitution specifies certain powers of the executive and judiciary (e.g., commanding the armed forces and judging cases arising under the Constitution), the national government’s power rests squarely upon the legislative authority of Congress, as defined in Article I, Sections 8, 9, and 10.

Nevertheless, over the generations — and especially since the New Deal of Franklin D. Roosevelt — various acts of Congress, the executive branch, and the judicial branch have usurped the powers and rights of States and citizens. This has happened because of deliberate misreadings of the real Constitution; for example:

  • The phrase “promote the general Welfare” in the Preamble refers to a desired result of the adoption of the Constitution. It is not an edict to redistribute income and wealth.
  • The phrase “general Welfare” in Article I, Section 8, is meant to place a further limit on the specific powers granted to Congress in the same section of the Constitution. Congress is supposed to exercise those powers for the benefit of all citizens and not for the benefit of the citizens of specific States or regions.
  • The power of Congress to tax is granted in Article I, Section 8, to enable Congress to execute its specific powers. This limited power has been aggrandized into a general power of taxation for any purpose, constitutional or unconstitutional.
  • The power of Congress “to regulate Commerce … among the several States” — also granted in Article I, Section 8 — is meant to prevent the States from restricting or distorting the terms of trade across their borders, not to grant the national government the unlimited statutory and regulatory authority that it now has, thanks to the Supreme Court.
  • In Article I, Section 8, the authority of Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof” has been distorted out of all recognition. The words “necessary and proper” are meant to apply to the exercise of Congress’s specific powers. They are not a license to expand those powers on the pretext that the new powers have something to do with those actually granted by the Constitution.
  • The “equal protection” clause of Amendment XIV — “nor shall any State … deny to any person within its jurisdiction the equal protection of the laws” — is meant to secure the legal equality of those former slaves whose freedom had been secured by Amendment XIII. Amendment XIV has became, instead, an excuse for legislation, executive orders, and judicial decisions that grants special privileges to specific, “protected” groups by curtailing the liberty of those who cannot claim affiliation with one or another of the “protected” groups.

All of that and more is documented in a biting paper, “Our Perfect, Perfect Constitution“, by Michael Stokes Paulsen, Distinguished University Chair and Professor of Law, University of St. Thomas (Minnesota). I will not excerpt the paper because it is short and deserves to be read whole. Instead, I offer my shorter, unschooled version of the Constitution as it now stands:

  • Congress may pass any law about anything.
  • The president and the independent regulatory agencies created by Congress may do just about anything they want to do because of (a) delegations of power by Congress and (b) sheer willfulness on the part of the president and the regulatory agencies.
  • The Supreme Court may rewrite law at will, regardless of the written Constitution, especially for the purposes of (a) enabling Congress to obliterate social and economic liberty, and (b) disabling the ability of the defense and law-enforcement forces of the United States to defend the life, liberty, and property of Americans.

V. THE BASES OF ABROGATION

A. The Framers’ Fatal Error

The wise men who framed the Constitution saw that a legislature could act like a mob; thus:

Federalist No. 10 (James Madison) —

[I]t may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.

Federalist No. 15 (Alexander Hamilton) —

Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons of whom they are composed into improprieties and excesses, for which they would blush in a private capacity.

Federalist No. 55 (Madison) —

Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.

Federalist No. 58 (Madison) —

[T]he more multitudinous a representative assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the people. Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation. The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few.

Federalist No. 63 (Madison) —

[T]here are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

Federalist No. 71 (Hamilton) —

The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. It is a just observation, that the people commonly intend the public good. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it.

Federalist No. 73 (Hamilton) —

The primary inducement to conferring the power in question [the veto] upon the Executive is, to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design. The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest.

For all of their wisdom, however, the Framers were far too optimistic about the effectiveness of the checks and balances in their design. Consider this, from Hamilton:

It may … be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments. [Federalist No. 81]

Hamilton’s misplaced faith in the Constitution’s checks and balances is an example of what I call the Framers’ fatal error. The Framers underestimated the will to power that animates office-holders. The Constitution’s wonderful design — horizontal and vertical separation of powers — which worked rather well until the late 1800s, cracked under the strain of populism, as the central government began to impose national economic regulation at the behest of muckrakers and do-gooders. The Framers’ design then broke under the burden of the Great Depression, as the Supreme Court of the 1930s (and since) has enabled the national government to impose its will in matters far beyond its constitutional remit.

The Framers’ fundamental error can be found in Madison’s Federalist No. 51. Madison was correct in this:

It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.

But Madison then made the error of assuming that, under a central government, liberty is guarded by a diversity of interests:

[One method] of providing against this evil [is] … by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable…. [This] method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased.

Madison then went on to contradict what he had said in Federalist No. 46 about the States being a bulwark of liberty:

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

Madison understood that a majority can tyrannize a minority. He understood that the States are better able to prevent the rise of tyranny if the powers of the national government are circumscribed. But he then assumed that the States themselves could not resist tyranny within their own borders. Madison overlooked the importance of exit as the ultimate check on tyranny. He assumed (or asserted) that in creating a new national government with powers greatly exceeding those of the Confederation a majority of States would not tyrannize the minority and that minorities with overlapping interests would not concert to tyrannize the majority. Madison was so anxious to see the Constitution ratified that he oversold himself and the States’ ratifying conventions on the ability of the national government to hold itself in check. Thus the Constitution is lamentably silent on nullification and secession, which are real checks on power.

B. The New Deal and Beyond

Though the constitutional contract had not been strictly adhered to for some time, it began to unravel in earnest with the onset of the Great Depression, which led to the election of Franklin D. Roosevelt and the New Deal.

What went wrong? And how did it go wrong so quickly? Think back to 1928, when Americans were more prosperous than ever and the GOP had swept to its third consecutive lopsided victory in a presidential race. All it took to snatch disaster from the jaws of delirium was a stock-market crash in 1929 (fueled by the Fed) that turned into a recession that turned into a depression (also because of the Fed). The depression became the Great Depression, and it lasted until the eve of World War II, because of the activist policies of Herbert Hoover and Franklin Roosevelt, which suppressed recovery instead of encouraging it. There was even a recession (1937-38) within the depression, and the national unemployment rate was still 15 percent in 1940. It took the biggest war effort in the history of the United States to bring the unemployment rate back to its pre-depression level.

From that relatively brief but deeply dismal era sprang a new religion: faith in the national government to bring peace and prosperity to the land. Most Americans of the era — like most human beings of every era — did not and could not see that government is the problem, not the solution. Victory in World War II, which required central planning and a commandeered economy, helped to expunge the bitter taste of the Great Depression. And coming as it did on the heels of the Great Depression, reinforced the desperate belief — shared by too many Americans — that salvation is to be found in big government.

The beneficial workings of the invisible hand of competitive cooperation are just too subtle for most people to grasp. The promise of a quick fix by confident-sounding politicians is too alluring. FDR became a savior-figure because he talked a good game and was an inspiring war leader, though he succumbed to pro-Soviet advice.

With war’s end, the one-worlders and social engineers swooped on a people still jittery about the Great Depression and fearful of foreign totalitarianism. (The native-born variety was widely accepted because of FDR’s mythic status.) Schools and universities became training grounds for the acolytes of socialism and amoral internationalism.

Warren Henry is right when he says that

progressivism is … broadly accepted by the American public, inculcated through generations of progressive dominance of education and the media (whether that media is journalism or entertainment). Certainly Democrats embrace it. Now the political success of Donald J. Trump has opened the eyes of the Right to the fact that Republicans largely accept it….

Republicans have occasionally succeeded in slowing the rate at which America has become more progressive. President Reagan was able to cut income tax rates and increase defense spending, but accepted tax increases to kick the can on entitlements and could not convince a Democratic Congress to reduce spending generally. Subsequent administrations generally have been worse. A Republican Congress pressured Bill Clinton into keeping his promise on welfare reform after two vetoes. He did so during a period when the end of the Cold War and the revenues from the tech bubble allowed Washington to balance budgets on the Pentagon’s back. Unsurprisingly, welfare reform has eroded in the ensuing decades.

Accordingly, the big picture remains largely unchanged. Entitlements are not reformed, let alone privatized. To the contrary, Medicare was expanded during a GOP administration, if less so than it would have been under a Democratic regime…. Programs are almost never eliminated, let alone departments.

The Right also loses most cultural battles, excepting abortion and gun rights. Notably, the inroads on abortion may be due as much to the invention and deployment of the sonogram as the steadfastness of the pro-life movement. Otherwise, political and cultural progressivism has been successful in their march through the institutions, including education, religion, and the family.

Curricula increasingly conform to the progressive fashions of the moment, producing generations of precious snowflakes unequipped even to engage in the critical thinking public schools claim to prioritize over an understanding of the ages of wisdom that made us a free and prosperous people. Church membership and attendance continues their long-term decline. A country that seriously debated school prayer 30 years ago now debates whether Christians must be forced to serve same-sex weddings.

Marriage rates continue their long-term decline. Divorce rates have declined from the highs reached during the generation following the sexual revolution, but has generally increased over the course of the century during which progressivism has taken hold (despite the declining marriage rate). Those advocating reform of the nation’s various no-fault divorce laws are few and generally considered fringe. [“Americans Are As Deluded As Our Elites“, The Federalist, June 26, 2016]

There’s more, but disregard Henry’s reification of America when he should write “most Americans”:

Meanwhile, America has voted for decade after decade of tax-and-spend, borrow-and-spend, or some hybrid of the two. If the white working class is now discontented with the government’s failure to redress their grievances, this is in no small part due to the ingrained American expectation that government will do so, based on the observation that government typically hungers to increase government dependency (not that the white working class would use these terms).…

In sum, while it is correct to note that elites are not doing their jobs well, it is more difficult to conclude that elites have not been responding to the political demands of the American public as much as they have driven them.…

The presidential nominees our two major parties have chosen are largely viewed as awful. But Hillary Clinton and Donald Trump offer two slightly different versions of the same delusion: that progressivism works, if only the elites were not so stupid. This delusion is what most Americans currently want to believe.

Sad but disastrously true. Dependency on government has become deeply ingrained in the psyche of most Americans. As Timothy Taylor points out,

[g]overnment in the United States, especially at the federal level, has become more about transfer payments and less about provision of goods and services.…

[There has been an] overall upward rise [of transfer payments] in the last half-century from 5% of GDP back in the 1960s to about 15% of GDP in the last few years….

The political economy of such a shift is simple enough: programs that send money to lots of people tend to be popular. But I would hypothesize that this ongoing shift not only reflects voter preferences, but also affect how Americans tend to perceive the main purposes of the federal government. Many Americans have become more inclined to think of federal budget policy not in terms of goods or services or investments that it might perform, but in terms of programs that send out checks. [“The Transition to Transfer Payment Government“, Conversable Economist, July 1, 2016]

VI. POSSIBLE REMEDIES

What lies ahead? Not everyone is addicted to government. There are millions of Americans who want less of it — a lot less — rather than more of it. Here are some options.

A. The Benedict Option

Bruce Frohnen says this about it (source no longer available online):

[Rod] Dreher has been writing a good deal, of late, about what he calls the Benedict Option, by which he means a tactical withdrawal by people of faith from the mainstream culture into religious communities where they will seek to nurture and strengthen the faithful for reemergence and reengagement at a later date….

The problem with this view is that it underestimates the hostility of the new, non-Christian society ….

Leaders of this [new, non-Christian] society will not leave Christians alone if we simply surrender the public square to them. And they will deny they are persecuting anyone for simply applying the law to revoke tax exemptions, force the hiring of nonbelievers, and even jail those who fail to abide by laws they consider eminently reasonable, fair, and just.

That is exactly what is happening to many who dare speak out against same-sex “marriage”, and who dare to utter what might be construed as conservative views (e.g., Charles Murray and Professor Amy Wax). These are fundamental wrongs that cannot be cured — and may be encouraged — by widespread adoption of the Benedict Option.

B. Geographic Sorting

This refers to the tendency of “Blue” States to become “bluer” and “Red” States to become “redder”. It means that Americans are sorting themselves along ideological lines. This tendency — natural and laudable as it is — doesn’t cure the underlying problem: the accretion of oppressive power by the national government. Lives and livelihoods in every State, “Red” as well as “Blue”, are controlled by the edicts of the legislative, executive, and judicial branches of the national government. There is little room for State and local discretion. Moreover, much of the population shift toward “Red” must be understood as opportunistic (e.g., warmer climates, lower taxes) and not necessarily as an embrace of “Red” politics.

In my experience, for example, Californians who flee that State’s high taxes and heavy regulations for Austin, Texas, bring with them a strong preference for the kinds of programs that cause high taxes and heavy regulations. They vote accordingly, apparently ignorant of the connection between the programs they desire, the taxes they must pay, and the regulations they must endure.

C. Convention of the States

A much-discussed option in recent years is a convention of the States, called in accordance with Article V of the Constitution, to amend the Constitution. The aim of such a convention would be to underscore what the Constitution says about the limits on the power of the national government. But the Constitution already says those things. There is no need to underscore them, they just need to be enforced. The options discussed below offer ways to enforce the Constitution.

There is also the matter of a balanced-budget amendment to the Constitution. There is no need to hold a convention of the States to propose and ratify such an amendment. And if the national government could be reined in, so that it more closely resembles the one intended by the Framers, spending by the national government would also be reined in.

D. Departmentalism

The U.S. Supreme Court is not the final arbiter of the Constitution’s meaning — contrary to popular belief and many an errant jurist and law professor.

The answer to myth of judicial supremacy is departmentalism. Michael Stokes Paulsen and Luke Paulsen describe it in their book, The Constitution: An Introduction:

All branches of government are equally bound by the Constitution. No branch of the federal government— not the Congress, not the President, not even the Supreme Court— can legitimately act in ways contrary to the words of the Constitution. Indeed, Article VI requires that all government officials— legislative, executive, and judicial, state and federal—“ shall be bound by Oath or Affirmation, to support this Constitution.” Thus, the idea of a written constitution is closely tied to the idea of constitutional supremacy: In America, no branch of government is supreme. The government as a whole is not supreme. The Constitution is supreme. It is the written Constitution that prevails over every other source of authority in the United States.

It is crucially important to account for the States in any discussion of departmentalism. Too often all of the branches of the national government have been in agreement about the abrogation of the constitutional contract. Look at the New Deal Supreme Court, for example, which merely upheld Social Security and other unconstitutional legislation proposed by FDR and eagerly embraced by Congress. Similar examples from later administrations include but are far from limited to Medicare and Medicaid (advocated by Lyndon B. Johnson) and their vast and costly expansion through Obamacare.

Further, there are many notable instances in which the Supreme Court has struck down State laws that seem to lie beyond the province of the Constitution, and has done so on flimsy pretexts with the obvious aim of making law that expands the power of the national government. Notable examples are Roe v. Wade (1973), which manufactured a “right” to abortion, and Obergefell v. Hodges (2015) which legalized same-sex “marriage”, despite the wisdom embedded in long-standing social norms.

As sovereign entities and parties to the constitutional contract, the States can (and should) refuse to implement unconstitutional decrees emanating from the central government. Mike Huckabee, former governor of Arkansas, seems to understand this:

“If these people in California can thumb their nose at a law they don’t like [i.e., national immigration law] then I guarantee there will be a pro-life governor who will simply say no more abortions in our state and that’s just the way it is,” … Huckabee … told Fox News….

Far too many Americans have … bought the line that the “Supremacy Clause” of the Constitution states that the federal government is supreme over the states. That is most certainly not what is said in Article VI of the Constitution! Rather, the supremacy clause of the Constitution states that the Constitution is the supreme law of the land. A law passed by Congress that is not “in pursuance” of the Constitution is therefore no law at all — and neither is a decision of the Supreme Court that does not follow the Constitution.

While the wording of the Constitution is quite clear — the Congress makes all laws under the supremacy of the Constitution — it is still far too common to hear the misinformed remark that Supreme Court decisions are “the law of the land.” On the contrary, a Supreme Court decision is “the law of the case,” and is binding only on the parties involved in that case….

No one knows how the federal government would react if a state’s governor directed legal authorities to enforce homicide laws against clinics and abortionists. But, as Huckabee told Fox News, it might happen. In Oklahoma, a former state representative, Dan Fisher, is running for governor, and is vowing to do just that. Right now, Fisher is running far behind in public opinion polls for the Republican nomination. He is not expected to win the governorship.

But at some point, a pro-life governor may decide it is time to test the federal government on this point. If the federal courts and the rest of the federal government would actually follow the Constitution instead of a rogue decision by the Supreme Court, the federal government’s reaction would be meek acquiescence. Hopefully, that is what would occur, though no one can predict what the outcome would be. [Steve Byas, “Huckabee Predicts That a Pro-Life Governor Could Predict the Feds“, The New American, April 9, 2018]

The United States has been through this before, in the Nullification Crisis of 1832-33,

during the presidency of Andrew Jackson, which involved a confrontation between South Carolina and the federal government. It ensued after South Carolina declared that the federal Tariffs of 1828 and 1832 were unconstitutional and therefore null and void within the sovereign boundaries of the state….

Military preparations to resist anticipated federal enforcement were initiated by the state. On March 1, 1833, Congress passed both the Force Bill—authorizing the President to use military forces against South Carolina—and a new negotiated tariff, the Compromise Tariff of 1833, which was satisfactory to South Carolina.

But that was long ago, in a time when a State might reasonably expect to be able to defend itself militarily against U.S. armed forces, or at least put up a good fight. What would happen now and in the future depends mainly on who occupies the White House at the time. Will Donald Trump use force to apply national immigration law in California? Would a Democrat president send U.S. armed forces to enforce Roe v. Wade and its successors against a State law banning abortion or restricting it in a way that the Supreme Court has deemed unconstitutional?

Departmentalism is all well and good if it checks the national government here and there, but more drastic measures are required to restore the constitutional order.

E. Preemptive (Cold) Civil War

Complete victory for the enemies of liberty is only a few election cycles away. The squishy center of the American electorate — as is its wont — will probably swing back toward the Democrat Party in 2024, if not sooner. With a Democrat in the White House, a Democrat-controlled Congress, and a few party switches in the Supreme Court, the dogmas of the information-entertainment-media-academic complex will become the law of the land; for example:

Billions and trillions of dollars will be wasted on various “green” projects, including but far from limited to the complete replacement of fossil fuels by “renewables”, with the resulting impoverishment of most Americans, except for comfortable elites who press such policies).

It will be illegal to criticize, even by implication, such things as abortion, illegal immigration, same-sex marriage, transgenderism, anthropogenic global warming, or the confiscation of firearms. These cherished beliefs will be mandated for school and college curricula, and enforced by huge fines and draconian prison sentences (sometimes in the guise of “re-education”).

Any hint of Christianity and Judaism will be barred from public discourse, and similarly punished. Other religions will be held up as models of unity and tolerance.

Reverse discrimination in favor of females, blacks, Hispanics, gender-confused persons, and other “protected” groups will become overt and legal. But “protections” will not apply to members of such groups who are suspected of harboring libertarian or conservative impulses.

Sexual misconduct will become a crime, and any male person may be found guilty of it on the uncorroborated testimony of any female who claims to have been the victim of an unwanted glance, touch (even if accidental), innuendo (as perceived by the victim), etc.

There will be parallel treatment of the “crimes” of racism, anti-Islamism, nativism, and genderism.

All health care in the United States will be subject to review by a national, single-payer agency of the central government. Private care will be forbidden, though ready access to doctors, treatments, and medications will be provided for high officials and other favored persons. The resulting health-care catastrophe that befalls most of the populace (like that of the UK) will be shrugged off as a residual effect of “capitalist” health care.

The regulatory regime will rebound with a vengeance, contaminating every corner of American life and regimenting all businesses except those daring to operate in an underground economy. The quality and variety of products and services will decline as their real prices rise as a fraction of incomes.

The dire economic effects of single-payer health care and regulation will be compounded by massive increases in other kinds of government spending (defense excepted). The real rate of economic growth will approach zero.

The United States will maintain token armed forces, mainly for the purpose of suppressing domestic uprisings. Given its economically destructive independence from foreign oil and its depressed economy, it will become a simulacrum of the USSR and Mao’s China — and not a rival to the new superpowers, Russia and China, which will largely ignore it as long as it doesn’t interfere in their pillaging of respective spheres of influence. A policy of non-interference (i.e., tacit collusion) will be the order of the era in Washington.

Though it would hardly be necessary to rig elections in favor of Democrats, given the flood of illegal immigrants who will pour into the country and enjoy voting rights, a way will be found to do just that. The most likely method will be election laws requiring candidates to pass ideological purity tests by swearing fealty to the “law of the land” (i.e., abortion, unfettered immigration, same-sex marriage, freedom of gender choice for children, etc., etc., etc.). Those who fail such a test will be barred from holding any kind of public office, no matter how insignificant.

Are my fears exaggerated? I doubt it. I have lived long enough and seen enough changes in the political and moral landscape of the United States to know that what I have sketched out can easily happen within a decade after Democrats seize total control of the national government. And it can happen given the fickleness of the electorate.

Here is what needs to happen, and happen soon:

Compile a documented dossier of the statutes, regulations, and judicial decisions of the United States government that grievously violate the Constitution. Such a tabulation would include, but be far from limited to, enactments like Social Security, Medicare, Medicaid, and Obamacare that aren’t among the limited and enumerated powers of Congress, as listed in Article I, Section 8.

Prioritize the list, roughly according to the degree of damage each item does to the liberty and prosperity of Americans.

Re-prioritize the list, to eliminate or reduce the priority of items that would be difficult or impossible to act on quickly. For example, although Social Security, Medicare, and Medicaid are unconstitutional, they have been around so long that it would be too disruptive and harmful to eliminate them without putting in place a transition plan that takes many years to execute.

Of the remaining high-priority items, some will call for action (e.g., implementation of the “travel ban” before the Supreme Court can act on it); some will call for passivity (e.g., allowing individual States to opt out of federal programs without challenging those States in court).

Announce the actions to be taken with regard to each high-priority item. There would be — for general consumption — a simplified version that explains the benefits to individuals and the country as a whole. There would also be a full, legal explanation of the constitutional validity of each action. The legal explanation would be “for the record”, in the likely event of a serious attempt to impeach the president and his “co-conspirators”. The legal version would be the administration’s only response to judicial interventions, which the administration would ignore.

One of the actions would be to enforce the First Amendment against information-entertainment-media-academic complex. This would begin with action against high-profile targets (e.g., Google and a few large universities that accept federal money).

What kind of action do I have in mind? This is a delicate matter because the action must be seen as rescuing the First Amendment, not suppressing it; it must be taken solely by the executive; and it must comport with legitimate authority already vested in the executive. Even then, the hue and cry will be deafening, as will the calls for impeachment. It will take nerves of steel to proceed on this front.

Here’s a way to do it:

EXECUTIVE ORDER NO. __________

The Constitution is the supreme law of the land. (Article V.)

Amendment I to the Constitution says that “Congress shall make no law … abridging the freedom of speech”.

Major entities in the telecommunications, news, entertainment, and education industries have exerted their power to suppress speech because of its content. (See appended documentation.) The collective actions of these entities — many of them government- licensed and government-funded — effectively constitute a governmental violation of the Constitution’s guarantee of freedom of speech (See Smith v. Allwright, 321 U.S. 649 (1944) and Marsh v. Alabama, 326 U.S. 501 (1946).)

As president of the United States, it is my duty to “take Care that the Laws be faithfully executed”. The Constitution’s guarantee of freedom of speech is a fundamental law of the land.

Therefore, by the authority vested in me as president by the Constitution, it is hereby ordered as follows:

1. The United States Marshals Service shall monitor the activities of the entities listed in the appendix, to ascertain whether those entities are discriminating against persons or groups based on the views, opinions, or facts expressed by those persons or groups.

2. Wherever the Marshals Service observes effective discrimination against certain views, opinions, or facts, it shall immediately countermand such discrimination and order remedial action by the offending entity.

3. Officials and employees of the entities in question who refuse to cooperate with the Marshals Service, or to follow its directives pursuant to this Executive Order, shall be suspended from duty but will continue to be compensated at their normal rates during their suspensions, however long they may last.

4. This order shall terminate with respect to a particular entity when the president is satisfied that the entity will no longer discriminate against views, opinions, or facts on the basis of their content.

5. This order shall terminate in its entirety when the president is satisfied that freedom of speech has been restored to the land.

The drastic actions recommended here are necessary because of the imminent danger to what is left of Americans’ liberty and prosperity. The alternative is to do nothing and watch liberty and prosperity vanish from view. There is nothing to be lost, and much to be gained.

F. Secession

In accordance with the doctrine of departmentalism, a State may be tempted to nullify an unconstitutional act of the national government. But there are probably many such acts that the State (or a preponderance of its citizens) would wish to nullify. Why do the thing piecemeal — and risk intervention by the national government for the sake of a single issue — when a sweeping solution is at hand? The sweeping solution, of course, is secession.

Secession is a legitimate constitutional act — a legal act, in other words — conventional wisdom to the contrary notwithstanding.

The best way to show that secession is legal is to construct a legal case for it, in the form of a resolution of secession. The following resolution, which necessarily repeats much of what I have written to this point, is set between two rows of asterisks. Readers who are already convinced by what I have written thus far may wish to skip the resolution, though it does introduce some additional material that lends weight to the case for secession.

**********

In Convention, __________ 20__.

The Declaration of the representatives of the people of the State of _______________.

It has become necessary for the people of _______________ to dissolve the political bands which have connected them with the United States of America, and to assume the separate and equal status of an independent nation. A decent respect for the opinions of mankind requires that the people of _______________ should declare the causes which impel them to the separation, and explain its legality.

The Constitution is a contract — a compact in the language of the Framers. The parties to the compact are not only the States but also the national government created by the Constitution.

It was  by the grace of nine States that the Constitution became effective in 1789. Those nine States voluntarily created a new nation and national government and, at the same time, voluntarily ceded to that government certain specified and limited powers. The States and their people were given to understand that, in return for the powers granted it, the central government would exercise those powers for the benefit of the States and their people. Every State subsequently admitted to the union has subcribed to the Constitution with the same understanding as the nine States whose ratification effected it.

Lest there be any question about the status of the Constitution as a compact, we turn to James Madison, who is often called the Father of the Constitution. Madison, in a letter to Daniel Webster dated March 15, 1833, addresses

the question whether the Constitution of the U.S. was formed by the people or by the States, now under a theoretic discussion by animated partizans.

Madison continues:

It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity.

Moving closer in time to the ratification of the Constitution, this is from Madison’s report on the Virginia Resolutions of 1798, a report that was adopted by the General Assembly of Virginia in 1800:

The third resolution is in the words following:–

“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact–as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose, for arresting the progress of the evil and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them.”…

The resolution declares, first, that “it views the powers of the federal government as resulting from the compact to which the states are parties;” in other words, that the federal powers are derived from the Constitution; and that the Constitution is a compact to which the states are parties….

The other position involved in this branch of the resolution, namely, “that the states are parties to the Constitution,” or compact, is, in the judgment of the committee, equally free from objection…. [I]n that sense the Constitution was submitted to the “states;” in that sense the “states” ratified it; and in that sense of the term “states,” they are consequently parties to the compact from which the powers of the federal government result. . . .

. . . The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity.

Finally, in The Federalist No. 39, which informed the debates in the various States about ratification,  Madison says that

the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. . . .

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.

Madison leaves no doubt about the continued sovereignty of each State and its people. The remaining question is this: On what grounds, if any, may a State withdraw from the compact into which it entered voluntarily?

There is a judicial myth — articulated by a majority of the United States Supreme Court in Texas v. White (1869) — that States may not withdraw from the compact because the union of States is perpetual:

The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

The Court’s reasoning is born of mysticism, not legality. Similar reasoning might have been used — and was used — to assert that the Colonies were inseparable from Great Britain. And yet, some of the people of the Colonies put an end to the union of the Colonies and Great Britain, on the moral principle that the Colonies were not obliged to remain in an abusive relationship. That moral principle is all the more compelling in the case of the union known as the United States, which — mysticism aside — is nothing more than the creature of the States.

In fact, the Constitution supplanted the Articles of Confederation and Perpetual Union, by the will of only nine of the thirteen States. Madison says this in Federalist No. 43 regarding that event:

On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? . . .

The . . . question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.

Moreover, in a letter to Alexander Rives dated January 1, 1833, Madison says that

[a] rightful secession requires the consent of the others [other States], or an abuse of the compact, absolving the seceding party from the obligations imposed by it.

An abuse of the compact most assuredly legitimates withdrawal from it, on the principle of the preservation of liberty, especially if that abuse has been persistent and shows no signs of abating. The abuse, in this instance, has been and is being committed by the national government.

The national government is both a creature of the Constitution and a de facto party to it, as co-sovereign with the States and supreme in its realm of enumerated and limited powers. One of those powers enables the Supreme Court of the United States to decide “cases and controversies” arising under the Constitution, which is but one of the ways in which the Constitution makes the national government a party to the constitutional contract. More generally, the high officials of the national government acknowledge that government’s role as a party to the compact — and the limited powers vested in them — when they take oaths of office requiring them to uphold the Constitution.

Those high officials have nevertheless have committed myriad abuses of the national government’s enumerated and limited powers. The abuses are far too numerous to list in their entirety. The following examples amply justify the withdrawal of the State of _______________ from the compact:

A decennial census is authorized in Article I, Section 2, for the purpose of enumerating the population of each State in order to apportion the membership of the House of Representatives among the States, and for none of the many intrusive purposes since sought by the executive branch and authorized by Congress.

Article I, Section 1, vests all legislative powers of the national government in the Congress, but Congress has authorized and allowed agencies of the executive branch to legislate, in the guise of regulation, on a broad and seemingly limitless range of matters affecting the liberty and property of Americans.

Further, in violation of Article III, which vests the judicial power of the national government in the judicial branch, Congress has authorized and allowed agencies of the executive branch to adjudicate matters about which they have legislated, thus creating conflicts of interest that have systematically deprived millions of Americans of due process of law.

Article I, Section 8, enumerates the specific powers of Congress, which exclude many things that Congress has authorized with the cooperation and acquiescence of the other branches; for example, establishing and operating national welfare and health-care programs; intervening in the education of American’s children in practically every village, town, and city in the land; intrusively regulating not only interstate commerce but also intrastate commerce, the minutiae of manufacturing, and private, non-commercial transactions having only a faint bearing, if any, on interstate commerce; making and guaranteeing loans, including loans by quasi-governmental institutions and other third parties; acquisition of the stock and debt of business enterprises; establishment of a central bank with the power to do more than issue money; requiring the States and their political subdivisions to adopt uniform laws on matters that lie outside the enumerated powers of Congress and beyond the previously agreed powers of the States and their subdivisions; and coercing the States and the political subdivisions in the operation of illegitimate national programs by providing and threatening to withhold so-called federal money, which is in fact taxpayers’ money. The view that the “general welfare” and/or “necessary and proper” clauses of Article I, Section 8, authorize such activities was refuted definitively in advance of the ratification of the Constitution by James Madison in Federalist No. 41, wherein the leading proponents of the Constitution stated their understanding of the Constitution’s meaning when they made the case for its ratification.

One of the provisions of Article I, Section 10, prohibits interference by the States in private contracts; moreover, the Constitution nowhere authorizes the national government to interfere in private contracts. Yet, directly and through the States, the national government has allowed, encouraged, and required interference in private contracts pertaining to employment, property, and financial transactions.

Contrary to the express words of Article II, which vests executive power in the president, Congress has vested executive power in agencies that are not under the control and supervision of the president.

The Supreme Court, in various holdings, has curtailed the president’s ability, as commander-in-chief, to defend Americans and their interests by circumscribing his discretionary authority in matters concerning the capture, detention, interrogation, and appropriate imposition of military punishment for offenses against the law of war, of enemy prisoners captured in the course of ongoing hostilities pursuant to a congressional declaration of war or authorization for use of military force.

Amendment I of the Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” But Congress has nevertheless abridged the freedom of political speech by passing bills that have been signed into law by presidents of the United States and not entirely struck down by the Supreme Court of the United States.

Amendment IX of the Constitution provides that its “enumeration . . . of certain rights, shall not be construed to deny or disparage others retained by the people.” But Congress, in concert with various presidents and Supreme Court majorities, has enacted laws that circumscribe such time-honored rights as freedom of association, freedom of contract, and property rights. That such laws were enacted for the noble purpose of ending some outward manifestations of discrimination does not exempt them from the purview of Amendment IX. As Amendment XIII attests, freedom is for all Americans, not just those who happen to be in favor at the moment.

As outlined above, the national government has routinely and massively violated Amendment X, which states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

We, therefore, the representatives of the people of _______________ do solemnly publish and declare that this State ought to be free and independent; that it is absolved from all allegiance to the government of the United States; that all political connection between it and government of the United States is and ought to be totally dissolved; and that as a free and independent State it has full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

[Signatures of the delegates to the convention]

**********

G. A Negotiated Partition of the Country

This could result from a serious secession movement by several States. It is a more likely outcome than secession by a lone State or isolated States, because of strength in numbers and economic leverage. It would also provide a home to which liberty-loving Americans could flock without an overhanging and oppressive national government in the background — for as long as they could keep it that way.

Secession and partition both involve practical problems, the foremost being how to provide for the common defense efficiently. Even if that problem were addressed by a mutual-defense pact, the threat of defection from the pact remains a strong possibility — the likely defector being the “Blue” States of the former United States. But the cost of going it alone on defense would, in my view, be well worth the savings in other areas (“social” programs, environmental regulations, etc.), and best of all, being able to live in a condition closer to liberty.

H. Coup

If all else fails, a more drastic measure may be called for:

When I see the worsening degeneracy in our politicians, our media, our educators, and our intelligentsia, I can’t help wondering if the day may yet come when the only thing that can save this country is a military coup. [Thomas Sowell, “Don’t Get Weak“, National Review, May 1, 2007]

Glenn Reynolds, who is decidedly anti-coup, writes

that the American Constitution, along with traditional American political culture in general, tends to operate against those characteristics, and to make the American polity more resistant to a coup than most. It is also notable, however, that some changes in the Constitution and in political culture may tend to reduce that resistance….

The civics-book statement of American government is that Congress passes laws that must be signed by the president (or passed over a veto), and that those laws must be upheld by thejudiciary to have effect. In practice, today’s government operates on a much more fluid basis, with administrative agencies issuing regulations that have the force of law – or, all too often, “guidance” that nominally lacks the force of law but that in practice constitutes a command – which are then enforced via agency proceedings.…

[I]t seems likely that to the extent that civilians, law enforcement, and others become used to obeying bureaucratic diktats that lack a clear basis in civics-book-style democratic process, the more likely they are to go along with other diktats emanating from related sources. This tendency to go along with instructions without challenging their pedigree would seem to make a coup more likely to succeed, just as a tendency to question possibly unlawful or unconstitutional requirements would tend to make one less likely to do so. A culture whose basis is “the law is what the bureaucrats say it is, at least unless a court says different,” is in a different place than one whose starting impulse is “it’s a free country.”…

[P]ersistent calls for a government-controlled “Internet kill switch”49 – justified, ostensibly, by the needs of cyberdefense or anti-terrorism – could undercut that advantage [of a decentralized Internet]. If whoever controlled the government could shut down the Internet, or, more insidiously, filter its content to favor the plotters’ message and squelch opposition while presenting at least a superficial appearance of normality, then things might actually be worse than they were in [Fletcher Knebel and Charles Bailey’s Seven Days in May, which imagined an attempted coup by a Curtis LeMay-like general].…

[T]he most significant barrier to a coup d’etat over American history has probably stemmed simply from the fact that such behavior is regarded as un-American. Coups are for banana republics; in America we don’t do that sort of thing. This is an enormously valuable sentiment, so long as the gap between “in America” and “banana republics” is kept sufficiently broad. But it is in this area, alas, that I fear we are in the worst shape. When it comes to ideological resistance to coups d’etat, there are two distinct groups whose opinions matter: The military, and civilians. Both are problematic….

[T]here are some troubling trends in civilian/military relations that suggest that we should be more worried about this subject in the future than we have been in the past…

Among these concerns are:

  • A “societal malaise,” with most Americans thinking that the country was on “the wrong track.”
  • A “deep pessimism about politicians and government after years of broken promises,” leading to an “environment of apathy” among voters that scholars regard as a precursor to a coup.
  • A strong belief in the effectiveness and honor of the military, as contrasted to civilian government.
  • The employment of military forces in non-military missions, from humanitarian aid to drug interdiction to teaching in schools and operating crucial infrastructure.
  • The consolidation of power within the military – with Congressional approval – into a small number of hands….
  • A reduction in the percentage of the officer corps from places outside the major service academies.…
  • A general insulation of the military from civilian life…. “Military bases, complete with schools, churches, stores, child care centers, and recreational areas, became never-to-be-left islands of tranquility removed from the chaotic crime-ridden environment outside the gates…. Thus, a physically isolated and intellectually alienated officer corps was paired with an enlisted force likewise distanced from the society it was supposed to serve [quoting from an essay by Charles J. Dunlap, “The Origins Of The American Military Coup of 2012,” Parameters, Winter, 1992-93, at 2]….

[D]istrust in the civilian government and bureaucracy is very high. A 2016 Associated Press/National Opinion Research Center poll found that more than 6 in 10 Americans have “only slight confidence – or none at all” that the federal government can successfully address the problems facing the nation. And, as the AP noted, this lack of confidence transcends partisan politics: “Perhaps most vexing for the dozen or so candidates vying to succeed President Barack Obama, the poll indicates widespread skepticism about the government’s ability to solve problems, with no significant difference in the outlook between Republicans and Democrats.”

As a troubling companion to this finding, the YouGov poll on military coups…also found a troubling disconnect between confidence in civilian government and confidence in the military: “Some 71% said military officers put the interests of the country ahead of their own interests, while just 12% thought the same about members of Congress.” While such a sharp contrast in views about civilian government and the military is not itself an indicator of a forthcoming coup, it is certainly bad news. Also troubling are polls finding that a minority of voters believes that the United States government enjoys the consent of the governed. This degree of disconnection and disaffection, coupled with much higher prestige on the part of the military, bodes ill. [“Of Coups and the Constitution“, University of Tennessee Legal Studies Research Paper No. 294, July 1, 2016, last revised February 7, 2017]

The degree of trust in the military bodes well, if you believe that a coup is the only possible salvation from despotism.

Military personnel are disciplined and have access to the tools of power, and many of them are trained in clandestine operations. Therefore, a cadre of properly motivated careerists might possess the wherewithal necessary to seize power. But a plot to undertake a coup is easily betrayed. Among other things, significant numbers of high-ranking officers are shills for the regulatory-welfare state. Therefore, a successful coup might deliver us from a relatively benign despotism into a decidedly malign despotism.

VII. A RADICAL VIEW OF THE CONSTITUTION

All of the foregoing is predicated on the validity of the Constitution as the supreme law of the land. But there is a good case to be made that the Constitution is no more valid than a bankrupt gambler’s I.O.U.

The Constitution is positive law, that is, law constructed by formal institutions (e.g., Congress, the Supreme Court), as opposed to natural law, which arises from human coexistence — the Golden Rule, for example. Natural law has moral standing because it appeals to and flows from human nature. Positive law may, by chance, be derived from natural law (e.g., murder as a crime), but it is a contrivance that can just as easily contravene natural law. (The British government’s legalistic treatment of Alfie Evans and his parents is a prominent case in point.)

The myriad statutes, ordinances, regulations, executive orders, and judicial judgments that proscribe the behavior of Americans are positive law. Most of this body of positive law is designed to benefit or satisfy special interests or political ideologies. It has little to do with how human beings would behave were they free to do so, and mindful of how their behavior would affect others. A great deal of this positive law exists because it has been imposed in the name of the Constitution or some “emanation” from it.

But the Constitution had no moral claim on most of the Americans living at the time of its adoption. And it has no moral claim on any American now living.

On this point, I turn to I turned to Lysander Spooner, anarchist extraordinaire. He begins No Treason (1867) with this:

The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” then existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see. Its language is:

We, the people of the United States (that is, the people then existing in the United States), in order to form a more perfect union, insure domestic tranquillity, 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.

It is plain, in the first place, that this language, as an agreement, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. In the second place, the language neither expresses nor implies that they had any right or power, to bind their “posterity” to live under it. It does not say that their “posterity” will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquillity, liberty, etc.

In sum, the Constitution is neither a compact between States (as sovereign entities) nor a law adopted by “the people”. It was a contract entered into by a fraction of the populace that became binding on the whole populace through state power. The vast majority of Americans now living have give no thought to whether they would enter into the same contract; they just accept its existence, though they know little of its actual import.

Why, then, in his opposition to slavery, did Spooner defer to the very Constitution that he clearly disdained? The answer is found in Chapter II of The Unconstitutionality of Slavery:

Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals—let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.

In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed “strictly” in favor of natural right. The rule is laid down by the Supreme Court of the United States in these words, to wit:

“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.” [United States vs. Fisher, 2 Cranch, 390.]

It will probably appear from this examination of the written constitutions, that slavery neither has, nor ever had any constitutional existence in this country; that it has always been a mere abuse, sustained, in the first instance, merely by the common consent of the strongest party, without any law on the subject, and, in the second place, by a few unconstitutional enactments, made in defiance of the plainest provisions of their fundamental law.

Translation: The Constitution is a fact. State actors have the power to enforce it. The text of the Constitution doesn’t authorize slavery. Slavery is against natural law. Therefore, it accords with natural law to enforce the Constitution against slavery.

Spelling it out:

1. The Constitution was a contract, but not a contract between “the people”. It was a contract drawn by a small fraction of the populace of twelve States, and put into effect by a small fraction of the populace of nine States. Its purpose, in good part, was to promote the interests of many of the Framers, who cloaked those interests in the glowing rhetoric of the Preamble (“We the People”, etc.). The other four of the original thirteen States could have remained beyond the reach of the Constitution, and would have done so but for the ratifying acts of small fractions of their populations. (With the exception of Texas, formerly a sovereign republic, States later admitted weren’t independent entities, but were carved out of territory controlled by the government of the United States. Figuratively, they were admitted to the union at the point of a gun.)

2. Despite their status as “representatives of the people”, the various fractions of the populace that drafted and ratified the Constitution had no moral authority to bind all of their peers, and certainly no moral authority to bind future generations. (Representative government is simply an alternative to other types of top-down governance, such as an absolute monarchy or a police state, not a substitute for spontaneous order. At most, a minimal night-watchman state is required for the emergence and preservation of beneficial spontaneous order, wherein social norms enforce the tenets of the Golden Rule.)

3. The Constitution was and is binding only in the way that a debt to a gangster who demands “protection money” is binding. It was and is binding because state actors have the power to enforce it, as they see fit to interpret it. (One need look no further than the very early dispute between Hamilton and Madison about the meaning of the General Welfare Clause for a relevant and crucial example of interpretative differences.)

4. The Constitution contains provisions that can be and sometimes have been applied to advance liberty. But such applications have depended on the aims and whims of those then in positions of power.

5. It is convenient to appeal to the Constitution in the cause of liberty, as Spooner did, but that does not change the fact that the Constitution was not and never will be a law enacted by “the people” of the United States or any State thereof.

6. Any person and any government in the United States may therefore, in principle, reject the statutes, executive orders, and judicial holdings of the United States government (or any government) as non-binding.

7. Secession is one legitimate form of rejection, though the preceding discussion clearly implies that secession by a State government is morally binding only on those who assent to the act of secession.

8. The ultimate and truly legitimate form of rejection is civil disobedience — the refusal of individual persons, or voluntary groupings of them (e.g., family, church, club, and other institutions of civil society), to abide by positive law when it infringes on natural law and liberty.

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