Thoughts for Constitution Day
By Anthony Gregory • Monday September 17, 2012 3:22 PM PDT • 9 Comments
By my reading, almost nothing the federal government does is Constitutional. The entire national security state and empire are dubious at best. The welfare state is unauthorized. Nothing in Article I, Section 8, the clause empowering Congress to legislate, gives that body the general authority over education, health care, the environment, most businesses, and most law and order issues. A strict interpretation of the Constitution would mean the immediate abolition of the Department of Education, the Department of Health and Human Services, the Federal Bureau of Investigation, the Central Intelligence Agency, federal immigration controls, the Drug Enforcement Administration, the Department of Energy, antitrust regulation, the Food and Drug Administration, NASA, Obamacare, Medicare, Social Security, and hundreds of other programs and agencies.
Virtually everything that both Obama and Romney propose to do as president is unconstitutional and therefore illegal.
Yet this seems not to matter to most Americans. And sadly, it has been this way for a long time. In fact, the first few presidents of the United States violated the Constitution flagrantly. Washington’s championing of a National Bank, Adams’s Alien and Sedition Act, and Jefferson’s embargo and Louisiana Purchase were all on very shaky ground. But the Constitution was at least taken seriously on some theoretical level for most of the nineteenth century. As late as the 1920s, politicians realized they could not simply ban alcohol on the federal level without changing the Constitution with the Eighteenth Amendment. By 1937, no such amendment was even seriously considered for Franklin Roosevelt to ban marijuana. And why would it? The entire New Deal was a war on the Constitution that early on faced resistance from the Supreme Court, which only ultimately caved and supported FDR’s power grabs.
Partisans yap about the Constitution, but I don’t think they almost ever mean it. During the Bush administration, liberal Democrats attacked the president for unconstitutional searches on citizens without warrants and unconstitutionally depriving prisoners of due process rights in the war on terror. Now that Obama has run with these programs, his comrades have simply shut up about them. When Bush did it it was criminal. When Obama does it it is just playing politics, you see.
Similarly, conservative Republicans talk about Obama’s many crimes against the Constitution, yet where were they when Bush expanded Medicare, signed No Child Left Behind, and shredded the Bill of Rights in the undeclared war on terror? Almost everything Bush did was just as unconstitutional as everything Obama does.
It would be easier to count the number of things Congress and the president do that do have some Constitutional legitimacy. They fund and run the Post Office. Senators face election contests every six years. The federal government levies an income tax.
But this raises the question of how great the Constitution is to begin with. It went into effect in 1789 and was amended with the Bill of Rights in 1791, after years of revolution against Great Britain over centralized authority, militarized law enforcement, and taxation. Soon after, the DC government cracked down on tax protests and stripped American political enemies of due process rights and the freedom of speech.
The Constitution, indeed, ushered in a far bigger, more powerful, more easily exploitable government than had existed under the Articles of Confederation. Founding Fathers like Patrick Henry wanted nothing to do with it. Thomas Jefferson thought it was unnecessary. The document created a powerful president, advocated by quasi-monarchists to resemble the English king, a tyrannical judicial branch, and a powerful Congress with the authority to tax, declare war, create bureaucracies, and suspend habeas corpus, over the wishes of individual states. The so-called Anti-Federalists saw the Constitution as a betrayal of the American Revolution. In many ways, it was.
In short, the Constitution authorized a government worse than what existed before, and in some ways created a system worse than what the American colonists faced under British rule. Yet compared to the Constitution of 1789, the current federal government is still despotic. As I’ve said before, the Constitution is far from libertarian, but the federal government is far from constitutional.
Lysander Spooner, probably America’s greatest nineteenth century libertarian, was very critical of the Constitution, although believed the worst crime against liberty in his time—slavery—was illegal even by the imperfect Constitution’s standards. I guess that’s about how I feel.
Today, many Americans would say that my particular interpretation of the Constitution is both too cynical and too romantic. It is too cynical, presumably, because I see the abuses of liberty so early on in the framing of the document. It is too romantic, I suppose, because I still think today’s government is even worse than what the Constitution authorizes. For example, most Americans think plenty of things—the president’s powers to assassinate anyone he wants, to regulate whatever he desires, to bomb any country his heart is intent on bombing, to use the police power to shape the economy as he wishes—are perfectly Constitutional.
Looking at the two possible interpretations of what had happened in the United States, either that the Constitution was being blatantly violated or that it indeed allowed for the abusive federal government he saw, Spooner summed up my current attitude: “But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”
Tags: American History, Civil Liberties, Constitution, Criminal Justice, Defense, Economics, Education, Morality, Natural Law, Philosophy, Politics, Power, Presidential Power, The State 
The Constitution was supposed to anchor the central government and bind it with the chains of law. In the past 200 plus years the Constitution has slipped its anchor and and has had its chains sawed off to make the document meaningless. We don’t live in a nation of laws but a nation of powerful men. The fact is that you cannot have the Welfare/Warfare State,that has risen in America,without ignoring the fundamental tenets of the U.S.Constitution. It happened because a voting majority of the American people wanted it to happen. Unfortunately, the minority of the population that suffers because of the loss of liberty have to pay the price.
libertarian jerry | Sep 17, 2012 | Reply
Nice article. We are worse off for the Constitution having been implemented and we are worse off for it not being followed.
Geoff | Sep 17, 2012 | Reply
Please read Article 1-Section 8-clauses 17-18, and Article 2-Section 3-clause 1, for the legitimacy of the militarily-held democracy in the form of a municipal corporation. This has been since the original Republic was vacated in March of 1861. After that, Lincoln used the Article 2 clause to have Congress proceed as though all seats (quorum) were still filled. This continued until 1871 when Congress passed an act to form the municipal corporation that was to govern DC, named “United States”, and is codified @ 28 USC 3002 15 A. That muni-corp is now the Federal Government, and all STATE OF’s, COUNTY OF’s, CITY OF’s are franchises of that muni-corp. Find the legal definition of “defacto” and “dejure”. In short, the Constitution has not been abrogated or violated. We have been convinced to be something we are not: a fiction at law, or name in all caps (JOHN H DOE). Do your own research on this and prove me wrong, please. Thanks for reading.
Gregory Alan of Johnson | Sep 18, 2012 | Reply
Anthony, let’s give three cheers for Lysander Spooner. His criticisms of the Constitution are powerful medicine against popular reverence for that batch of scribbling called the supreme law of the land.
There is something odd about what you wrote, however. If the Constitution “went into effect in 1789″, then how in June of 1788 could the clause of Article VII have been a licit source of knowledge about what, if any, conditions, would be sufficient for “Establishment”? How could anyone have known from Article VII before 1789 that the ratification of nine states’ conventions was needed? Or that such ratification would be sufficient?
Apologists of the Constitution have some explaining to do. For example, when did the clause of Article VII go into effect? In fact, when did it acquire the authority of law? Did that happen in 1788? Or in 1787?? Perhaps the quasi-monarchists expected people in the fall of 1787 to assume that Article VII was licit as of Monday, 17 Sept., 1787.
Now, no one has ever demonstrated the existence of a law to govern establishment as A7 pretends to do. Of course, any such law must be outside the Constitution. So, for these and other reasons no one should believe that the Constitution was established. By established I mean that the C acquired authority that obligates submission from inhabitants of the land it purports to circumscribe. The great Constitution is not a supreme law of any land, for it is not law at all.
Paul T | Sep 18, 2012 | Reply
Paul, your raise interesting points. It is not the only aspect of the Constitution that smacks of legal incoherence.
Anthony Gregory | Sep 18, 2012 | Reply
A very interesting article. After reading a recent bio of Alexander Hamilton, I too began to think maybe the anti-federalists had it right and the Constitution was a betrayal of the Revolution.
Yet it did not come from nowhere, nor did the delegates simply throw away the Articles of Confederation as popular mythology suggests. The Constitution was written to remedy specific faults of the Articles and some things were based on either the successful parts of the Articles or the existing state constitutions.
The Founders even foresaw an empire from sea to sea. Perhaps the seeds of today’s government were in the founding.
Al Maurer | Sep 18, 2012 | Reply
Anthony, I’ve read on several occasions something about Kurt Gödel, the mathematician and logician, having misgivings about the Constitution when he became a citizen. I think that I encountered this first in a book by Rudy Rucker, another mathematician, but I can’t recall if he gave any specifics. Wikipedia reports, vaguely, that Gödel found an inconsistency that would let the government be converted into a dictatorship. A written account of Gödel’s citizenship hearing is attributed to an Oskar Morgenstern, and in it is mentioned “inner contradictions” about how “in a perfectly legal manner it would be possible for somebody to become a dictator and set up a Fascist regime.”
Sometimes the Constitution is humorous and insulting, too. For example there is the 2nd amendment, so called. What almost no one wants to remember when discussing it is that the term militia had already been defined implicity in various clauses, mostly in Article I and Article II. The text of the 2nd amendment modifies that definition hardly a jot, and, laughibly, promises not to infringe the power, for example, of the president to be commander in chief of the militia.
Sooner or later leftists and Democrats will seize upon this, and then they will repeat ad nauseum in the schools, in the newspapers, on PBS and NPR, and so on just what the 2nd amendment promises. Probably all that discourages them is an awareness among Democrats that they would embolden secessionists and other enemies of the central government.
There is also the fact that many police and military support the popular misconception about the 2nd am. But leftists and Democrats are familiar with effective propaganda techniques.
Paul T | Sep 20, 2012 | Reply
Did you mean to suggest that Republicans are not as guilty as “leftists and Democrats”, Paul T? What are you smoking, that would lead to such a counterfactual conclusion?
terrymac | Sep 24, 2012 | Reply