Do We Deserve the Constitution of 2014?

Replacing the US Constitution of 1787 began in the 1930s, slowly and imperceptibly, always with bipartisan support. Now it rushes to completion, unmistakably. Democrat President Barack Obama’s proclamation: “I can do anything I want,” only exaggerated the reality of the 2014 constitution, which the Republican leadership of the House of Representatives re-confirmed quickly by effectively tossing yet one more part of the 1787 Constitution onto the dead-letter pile — the provision that the US government may borrow money only as authorized by law. In short, simply by ignoring the Constitution, our ruling class is imposing a new one on us. Insofar as we suffer it, we deserve it.

84090039The new constitution is best understood by asking, in the light of the many new powers that a Democrat president has asserted and to which the Republican leadership has assented, what may the president of the United States NOT do, so long as at least one third of the Senate protects him from being removed from office. The answer is: “not much.” This amounts to a not-so-constitutional monarchy in which the king rules unless and until he is replaced by another, just like him.

Quite simply, our ruling class behaves as if the Constitution of 1787 no longer exists, and as if the words of laws merely authorize the powerful to “do anything I want.” Thus in 2013 no one took seriously the fact that, no annual appropriations bill having been enacted, the US government had run out of lawful authority to do anything at all — not to collect taxes, to run courts or prisons, to fly airplanes, or to guard the White House. Instead, the ensuing “government shut down” ended up as a demonstration that the government could do whatever it wanted regardless of law with thin pretense about what it was doing.

Although the lack of lawful funds was due to the President’s refusal to accept any “continuing resolution” that did not include Obamacare, the ruling class — the Republican wing thereof very much included — blamed Republicans for that lack. Then, the government drew on money and authority that it did not have, and used it to inconvenience the public while blaming Republicans for those inconveniences. Meanwhile, taxes were collected, the White House was guarded, and the government did what it wanted as if no appropriations were needed to do it. All in the name of the rule of law.

This mockery had become possible because of an earlier one. As I have shown in this space, the bipartisan practice of consolidating all yearly appropriations into a single “omnibus” or “continuing” or “budget” bill makes a cruel joke out of mankind’s bottom-line safeguard of liberty, namely that government gets to spend only such money as may be voted by the people’s representatives. (In America, that means Art. I Sect. 9 of the Constitution of 1787). But these single spending bills force the people to choose between no government at all or one that is precisely as defined behind closed doors by whatever members of the ruling class are behind those doors. The Republicans just vie for a piece of the corrupt action.

President Obama has extended the mockery of our nominal Constitution to all other laws as well. Article II, which is the sole lawful source of his powers, requires to him to “take care that the laws be faithfully executed.” But Obama, routinely and on principle, has chosen which laws or parts of laws he supports or opposes. This is the heart of the constitution of 2014.

It happens that the laws he has chosen for this treatment are important in themselves. The 1996 Defense of Marriage Act, for example, had resulted from a major national dialogue on a matter fundamental to all. Obama took it upon himself to undo it, contrary to his Constitutional duty to uphold it. The 2010 Obamacare law had gained enough support to pass — though ever so barely — by awarding and imposing certain privileges and penalties. Since its passage though, Obama has simply enforced and non-enforced privileges and penalties substantially different from those that are in the law that is on the books.

But these laws’ substantive importance pales in comparison with the principle: the President of the United States now quite simply rules as pleases him and his supporters.

Now, nothing stops any president from decreeing that Congress must pass higher taxes or borrow more to fund, for example, the bailout of the health insurance industry. And if any elected representatives refuse, he can threaten to blame them for shutting down the government, confident that Republican leaders will, once again, blame whomever refuses to bend to the new constitution.

This Progressive constitution has long been gestating within our ruling class’s habits. Increasingly since the 1930s, our lives have been run by administrative agencies that make, administer, and apply regulations as they see fit rather than by laws that Congress passes, that the President administers, and that only courts and juries may force onto individuals. The Supreme Court has shaved away to nothing the distinction between law and administrative decree. Today’s so-called laws are in fact grants of power to bureaucracies. Thus when Nancy Pelosi famously said of the Obamacare bill that it had to become law (and hence turned over to the administrative process) before anyone could know what was in it, she was telling the truth about a bipartisan reality by then of long standing.

Note above all the thunderous silence of the Republican leadership, as it facilitates this process and looks forward to filling the shoes that they have helped Obama to expand. If the American people are to be spared the constitution of 2014, it will not be with the help of Republican leaders.

Thomas Jefferson wrote thus in a July 1816 letter to Samuel Kercheval:

Where then is our republicanism to be found? Not in our constitution certainly, but merely in the spirit of our people. That would oblige even a despot to govern us republicanly. Owing to this spirit, and to nothing in the form of our constitution, all things have gone well. But this fact… is not the fruit of our constitution… Our functionaries have done well, because generally honest men. If any were not so, they feared to show it.

Unless “the spirit of our people” manages to put some honest fear into the hearts of both parties’ functionaries, we will deserve the constitution of 2014.

Angelo M. Codevilla

Angelo M. Codevilla is professor emeritus of international relations at Boston University and is a Senior Fellow of The Claremont Institute. He served as a U.S. Senate Staff member dealing with oversight of the intelligence services. His new book Peace Among Ourselves and With All Nations was published by Hoover Institution Press.

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Comments

  1. Kevin R. Hardwick says

    Your question boils down to “what does it take for a constitution to be anything other than a ‘parchment barrier.'”

    Madison had some modest hopes that ambition could combat ambition–that, after all, was the animating force behind his frame of checks and balances. But Madison was under no illusions that this was sufficient–that it was, in the words of James Russell Lowell, “a machine that would go of itself.”

    Ultimately, the *only* thing that ensures that the words on the parchment will have any meaningful effect on the practice of government is the will and character of the people. That is what I take Jefferson to be saying, in the quote you provide above from his letter to Kercheval (although, if I recall correctly, Jefferson wrote that letter in the context of discussion of revision of the Virginia state constitution, not the federal constitution we are discussing here).

    But even the notion that the ultimate force animating the constitution is the people to whom the government is nominally accountable is a bit flawed in practice, since “accountability” is structured by institutions that themselves constrain the popular will.

    Anyway, all of the above suggests that the American effort to create a written constitution has been less successful than we might hope–that the distance separating British constitutionalism from American is less than we might imagine. Which, it seems to me, raises some interesting implications for the entire discussion of originalism :)

    • djf says

      Kevin, I think the “fear” keeping the governing class in line, to which Jefferson referred in that letter, was not just fear of losing the next election. I think Jefferson meant fear of popular resistance if the government stepped too far out of line. After all, that is what had happened not too long before in the War of Independence. Obviously, the government today has no such fear.

      • Kevin R. Hardwick says

        DJF–

        Jefferson certainly grounded his constitutionalism, at least at times, in popular resistance to unlawful authority. So I don’t think you are wrong to note that he may have had that in mind in his letter to Kercheval. The context within which he wrote the letter, however, leads me to believe he was thinking more broadly, to all of the ways in which a people can hold their government accountable. I can speak to the particular circumstances that structured the exchange between Kercheval and Jefferson, but it is a distraction from Codevilla’s excellent post above, and quite possibly not something that adds constructively (you may already know it, for example).

        Well wishes,
        Kevin

    • says

      Kevin, I would suggest two alternatives that rest stoically in our Constitution beyond the structured “… institutions that themselves constrain the popular will”, you mention.
      1. The Amendment process, “ … on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which … shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof …”. That certainly is structured AS “the popular will.”
      2. There is nothing structured in “Impeachment” that prevents the States and “the people(s) will” to charge “bad behavior” against federal officials, such as the President and Supreme Court Justices.
      I would like to ask why, in commenting to this essay, that you have not either agreed or disagreed w/Professor Codevilla’s individual charges? Would that bring you to the “two alternatives” I have suggested?
      Respectfully, John

      • Kevin R. Hardwick says

        John–

        I understood myself to be writing to express pretty strong agreement with Professor Codevilla’s argument. My apologies for not writing with sufficient clarity.

        It is far too easy to write elliptically in forums like this one. What I meant by “institutions that constrain the popular will” was the entire structure of mediating institutions that channel that amorphous thing we refer to as “the will of the people.” (The “people” have to hold their rulers accountable–but just as important, and perhaps more so, the rulers have to hold themselves accountable too. Our system of government requires virtue from both governors and governed.)

        In England, the constitution is what Parliament says it is. What makes that arrangement liberal is that most people in England, and most members of Parliament, choose to adhere to a long standing intellectual and liberal, tradition, that takes expression in a whole series of historical moments–moments like the Petition of Right, or the Glorious Revolution, or the speeches of Edmund Burke–and many others too, of course. Come the end of the day, though, it is not those expressions of liberty that ensure that the English government is limited and committed to protecting individual liberty. It is rather the commitment of individuals both within and without the government to the liberal norms embodied in the great tradition of English rights and English liberties.

        In both the United States and England, the “will of the people” is mobilized in fairly complex ways. It may be channelled via the two particular procedures you mention, but it seems to me to be expressed and organized by a much wider range than just those two.

        That’s my take, anyway, for what it is worth.

        I am not at all sure I have managed to express myself with clarity here–apologies for having to write in too much haste.

        Well wishes,
        Kevin

        • says

          Kevin, I find myself in the same situation(s); a little more depth in the comments. There is no need for any apologies for what you — genuinely have at virtue, and heart. Our task in these tough times, as honest and sincere commentators, leaves you, and I, questioning why we didn’t say — just little bit more.
          (Please, no apologies required or necessary. I appreciate your reference to my critiques (which I, evidently – should have left – unsaid.)
          Thank you for your response, Kevin.
          Respectfully, John

          • Scott Amorian says

            Most of us readers here in the non-scholarly peanut gallery recognize the shortcomings of this short essay format of communications. We enjoy your writings, and we are aware that not everything can be explained in a short commentary. Thank you for sharing and demonstrating courtesy.

  2. Angelo Codevilla says

    You are correct. “the distance separating British constitutionalism from American is less than we might imagine.” The Brits make this point a lot. All depends on fidelity to the spirit of the constitution. Absent that, the letter is of little help. the magnificent words of the Constitution of 1787 served well so long as they were revered.

    • says

      Professor Codevilla, I admire your frankness: “Unless “the spirit of our people” manages to put some honest fear into the hearts of both parties’ functionaries, we will deserve the constitution of 2014.”
      Your essay rings true in each federal citing, and more so when you attach it to the clause enumerations of the Constitution.
      (I have also made a comment to Kevin.)
      Respectfully, John
      Facebook, Author of “The Tribute”. publisher Xlibris, May 2013

    • Kevin R. Hardwick says

      Professor Codevilla–

      This strikes me as spot on. I think this was something the founders themselves understood quite well. Lowell coined his evocative phrase “a machine that would go of itself” in the late 19th century as a convenient means for capturing the position against which he wished to argue–so in that sense, it does seem to me that ours is hardly the first generation to have lost sight of this basic truth. The machine does not go of itself–for all of Madison’s magnificent institutional arrangements, in the end a liberal constitution (I trust it is clear I mean here “liberal” in the classical sense) depends upon the willingness of the people, and those who govern too, to adhere to it.

      Anyway, I much appreciate your very thoughtful post–nicely done.

      All best wishes,
      Kevin

    • Kevin R. Hardwick says

      Professor Codevilla–

      I would much benefit from your thoughts here, extending your argument above to develop its implications for the conversation focused on originalism. After all, I don’t think we necessarily get at “fidelity to the spirit of the constitution” from a close analysis of original meaning per se. Originalism strikes me as much more about the letter, and less about the spirit–the notion of fidelity to the spirit of the constitution is at the heart of the notion of a “living constitution.” Or am I hopeless confused here?

      Thanks . . .
      Kevin

      • gabe says

        Kevin:

        Agreed re: original meaning if by that one limits it to text.
        Perhaps, a better approach is original intent. I know many argue that the intent may be lost to the “artillery of time;” however, I do believe that it is somewhat susceptible to discernment. as you indicate in your excellent post below, there is a “telos” (my friends at Nomocracy in Politics notwithstanding) that impels the constitution toward “Ordered Liberty” and makes plain that the “structures” outlined within the document all point toward a certain end or object. Further, one can readily access the intent of the framers by studying their debates, both Fed and Anti-Fed. Can any reasonable observer claim that liberty was not amongst the primary objects of the document / structure of the government being envisaged?

        Lastly, there is the American Creed, so ably expressed by Mr Jefferson and others, in the Declaration that provides further illumination on the intent or “telos’

        Does originalism as oftentimes expounded support this broader view encompassing intent or is it to be strictly limited to text. That is not for someone such as I to assert – but i do believe that it should.

        Take care
        gabe

        BTW: thanks for the recommendation On Maier’s “American Scripture”
        There was much in there to like – but while I found it somewhat persuasive it was not dispositive and in some sense did not support her own thesis.

  3. anonymous says

    Assuming that the same number of democrats and republicans are re-elected, it requires 15 Republicans to vote against Boehner and he will no longer be speaker of the house. At least then we would get someone who would stand up to the democrats. 12 of those republicans voted against Boehner in the last election for speaker, so they only need 3 more votes. And all of this assumes that the same number of republicans are re-elected, if the republicans lose a few seats (as seems likely) they may already have enough votes to unseat Boehner as speaker. Recently Sean Hannity has come out against re-electing Boehner as speaker. In the last 5 days the Senate Conservatives Fund (a major super-PAC which has donated to a ton of republican candidates) has come out against Boehner ‘s re-election as speaker as well and even set up a website to help:http://www.replacethespeaker.com/. Who knows Boehner may even see the writing on the wall and just retire (it has happened before).

  4. R Richard Schweitzer says

    There is a bit of a puzzle in trying to think through the ways in which these various commentaries on constitutional issues can have a nexus to the basic libertarian concerns with **individual liberty.**

    It is pretty well established (and accepted?) that individual liberty is neither created by, nor derived from, a Constitution. So, it would seem **The Constitution** (of whatever vintage, read as original words with original meanings, or as words to be interpreted) exists to define and delineate the mechanisms of government.

    The operations of governments, their interactions with, and their impacts upon, the individuals within the societies where they appear produce the condition of “The State.”

    What we may be observing is that The Constitution has very little, if anything, to do with the character of the state.

    On that particular point we can refer to Michael Oakeshott’s 1974 essay “The Character of a Modern European State” for what may be useful example to examine what has become “The Character of the American State.”

    As in the case cited by Oakeshott, our state has become a purposive enterprise; seeking various objectives through the operations of the mechanism of government.

    We have observed the steady transfer of individual and civic functions to various levels of governments; the increasing intermediation through governmental facilities of interactions amongst individuals and civic organizations – to the point that the character of the state is now determined by having objectives of, inter alia, caring for the poor and elderly, affordable housing, healthcare, limitations of risks and a multitude of variations thereof having nothing to do with The Constitution.

    The conditioning for the establishment of a purposive enterprise, with creation of particular roles for the selection of the purposes and the means for their attainment, began with wars. It was particularly accelerated by the intentional diversion of governmental functions in WW I for that express political and social logical objective – to make the state a purposive enterprise.

    We are observing the difficulties of refining purposes in the multiplicity of the objectives established for the operation of our federal government. It is in the determination of those objectives and in the concept that there should be such objectives that the character of our state has been perverted to the point that The Constitution is no longer related to that character.

    • Kevin R. Hardwick says

      Richard–

      I am not sure I agree with your claim that liberty is not bound up in (“created by, or derived from”) the Constitution.

      Liberal constitutions exist to create the conditions necessary to preserve liberty. And one of the conceits of 17th century English liberalism is that liberty is antecedent to government. Thus, we have a pre-existing condition of liberty, derived from natural law and extant in the state of nature. Government then is one primary threat to liberty, and a liberal constitution exists to mitigate that threat.

      But if you read Locke and other social contract theorists closely, it is clear that in their thought the state of nature is anything but free. Quite the contrary, humans in a state of nature ultimately will wind up in what Hobbes described as a state of war of all against all–and that is not the kind of place in which anyone desires to be, and it is certainly not a place characterized by any kind of meaningful freedom. Hobbes knew well of what he wrote–he lived through the English civil wars, and that experience radically shaped his thought. Locke winds up in the same conclusions as Hobbes, although he gets there through a somewhat different path and via a more optimistic reading of human nature. But for both, as well as for other social contract theorists like Algernon Sydney or John Milton, the result is the same. Human beings require government in order to be free. A corollary to this is the argument that American Federalists made in the 1790s–in the words of Alexander Addison, “liberty without limit is licentiousness; it is the worst kind of tyranny.” This, as I understand it anyway, is what we mean by the term “ordered liberty.”

      If constitutions exist to protect liberty, and if government is necessary for liberty to exist, then it does not seem to me to matter all that much whether or not liberty is antecedent to government or is created by it–the two conditions are so inextricably intertwined that it does not make sense to try to disentangle them.

      All best wishes,
      Kevin

    • Kevin R. Hardwick says

      I should add as well that most political theorists I know who have tried to define what it is that a liberal constitution does–I am thinking here of guys like Thomas Alpheus Mason, Herman Belz, Giovanni Sartori, Donald S.Lutz, and Graham Maddox–agree that constitutions do considerably more than “define and delineate the mechanisms of government.”

      Some representative quotations from some of these guys:

      “A Constitution provides a definition for a way of life. It contains the essential political commitments of a people and is a collective, public expression of particular importance. Once can read a letter to gain insight into the mind of an individual, or read a set of treatises and pamphlets to obtain a sense of the range of positions on a particular issue. A constitution, a document of political founding or refounding, however, amounts to a comprehensive picture of a people at a given time.” Donald S. Lutz, The Origins of American Constitutionalism (Louisiana State University Press, 1988), p. 3.

      “The written, complete document is only a means. What really matters is the end, the telos. And the purpose, the telos, of English, American and European constitutionalism was, from the outset, identical. . . . All over the Western area people requested, or cherished, ‘the constitution,’ because this term meant to them a fundamental law, or a fundamental set of principles, and a correlative institutional arrangement, which would restrict arbitrary power and ensure a ‘limited government.’” Giovanni Sartori, “Constitutionalism: A Preliminary Discussion,” The American Political Science Review, Vol. 56, No. 4 (Dec., 1962), p. 855.

      “In 1830, and especially during the 1848 revolutions, it was very clear on both sides of the Channel what the people were asking for when they claimed a constitution. If, in England, “constitution” meant the system of British liberties, mutatis mutandis the Europeans wanted exactly the same thing: a system of protected freedom for the individual, which—according to the American usage of the English vocabulary—they called a ‘constitutional system.’ Having to start from naught, people on the Continent (as was first achieved by the Americans) wanted a written document, a charter, which would firmly establish the overall supreme law of the land.” Giovanni Sartori, “Constitutionalism: A Preliminary Discussion,” The American Political Science Review, Vol. 56, No. 4 (Dec., 1962), p. 854.

      “A Constitution is an account of the ways in which a people establish and limit the power by which they govern themselves, in accordance with the ends and purposes that define their existence as a political community. To the extent that a constitution identifies the first principles and ultimate ends of political life, it implicates questions of political and moral philosophy. Considered in this light, a constitution is normative, intended to prescribe what ought to be done by individuals and by the community they constitute for their mutual benefit. A constitution also has a practical and descriptive function: it indicates or discloses the institutional structures, forms, and procedures by which governmental power in a community is organized and the laws and rules of action that regulate the conduct of government. Tension between these dimensions of constitutional meaning—between normative standards and practical political reality—is reflected in controversy that often occurs in the life of a people over how they are constituted, or—what is the same thing—what their constitution is.” Herman Belz, “Written Constitutionalism as the American Project,” in Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective (Roman and Littlefield, 1998), p. 1.

      “Constitutionalism takes as its purpose resolution of the conflict that characterizes political life and makes government necessary, through procedures and institutions that seek to limit government and create spheres of individual and community freedom. Based on the paradoxical idea that power to make law and to rule can be at once sovereign and effective, yet also defined, reasonable, and responsible, constitutionalism contains an inherent tension that sets it against utopianism and anarchism, which deny the reality of power, and absolutism and totalitarianism, which tolerate no limits on power.” Herman Belz, “Constitutionalism and the American Founding,” in Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective (Roman and Littlefield, 1998), p. 15.

      “There are implicit dangers, however, in emphasizing one aspect of constitutionalism—the limitation of government—to the detriment of other aspects. Those who have pressed so strongly for a constitutionalism which knows only limitation of government in the interests of individual liberties have sometimes lost sight of the fact that too often the most dangerous threats to individual liberties come from nongovernmental sources, whether they be in the form of criminal bodies or legitimate, yet inordinately powerful, economic organizations such as multinational corporations or monolithic trade unions. As we have seen, in his studies of medieval constitutionalism McIlwain stressed the equal importance of a strong gubernaculum, government power, to control inordinate private interests to the benefit of a peaceful civil order, along with the essential jurisdictio which implied a civil control on government power.” Graham Maddox, “A Note on the Meaning of ‘Constitution,’” The American Political Science Review, Vol. 76, no. 4 (Dec., 1982), p. 809.

    • Scott Amorian says

      I must side with Richard and his opinion on the source of liberty.

      Liberty is the product of independence. My son is dependent on me. I order him to clean his room. When he grows up and becomes independent I will no longer be able to order him to clean up his room. He is liberated from my rule.

      If we put a thousand people, selected at random from around the world with no common language or culture, onto an island with no government, they would initially be in a state of nature. They would initially be at complete liberty. Being at complete liberty, they are free to form a government if they wish to do so. To preserve not their liberty but their safety and well being, they form government. Liberty comes first, then government. The free people trade some personal liberty to get safety and well being. The intention of the people is to trade a small amount of person liberty to gain liberty from violence and poverty. If government is constructed correctly, the newly formed citizen gains in the trade of one liberty for another. (Perhaps it is the desired increase in liberty that Kevin refers to as the connection between liberty and government.)

      The free citizens give up certain liberties to have a government. When government is sound in its construction it impinges minimally on the freedom of the citizens while preventing people from harming each other, and providing useful infrastructure when a centralized government can do so more effectively that the citizens and states can do individually, and providing a common representation to the people of other governments. A liberal constitution defines the form of the government and the obligations of the citizens with respect to owning and operating the government. It cannot define the rights of the sovereign citizens since all rights descend from the sovereigns.

      The American people, being independent and therefore liberated, are free to form and keep a government, and in so doing the people are defined as being the sovereign and the government as the subject. The sovereign grants rights to the subject, which the sovereign can do since the sovereign holds all rights to begin with. The granted rights have limits. In creating a government, the sovereign also incurs obligations to support the governmental subject. The sovereign holds ultimate accountability for wrongs caused by government, which speaks to the topic of the main article.

      The question of which comes first and which is most important, liberty or government, is very important, I think, because it defines the citizens, not the government as sovereign. This understanding creates necessary social order. The people are the boss. The governors are not. The people make the rules. The governors follow the rules. The sovereign people, not the people’s government, are ultimately responsible and accountable for the wellbeing of society.

      I do not see that government creates natural liberty, rather independence does. (In this case I differentiate between naturally occurring liberty which results from independence, and liberty manufactured by the creation of government.) The lack of independence, which is dependence, creates lack of liberty, which is subjugation. Liberal government is dependent on the sovereign citizens. The sovereign citizens are not dependent on government because the citizens can dissolve their government and form a new one that better suits their purposes.

      To the degree that a citizen is dependent on government, the person is not a free person but a subject of the government.

      The ways the power-hungry in government uses dependency are endless. The power-hungry take advantage of naturally occurring states of dependence that result from medical necessity, age, financial difficulty, etc. They create dependency using threats of violence, created crises, imagined crises, etc. All tyranny begins with public dependency.

      Getting to Codevilla’s question, I see that part of the problem of overreaching government is very much about the acceptance of the people of a state of dependence on government. This is a cultural issue. It is an issue of beliefs and organizations.

      Along with the problem of the acceptance of dependence in general is the problem of unwillingness or inability to repair flaws in the form of government.

      I believe that the principle causes of government overreach are fairly obvious and well known, so the forms of the corrections are fairly obvious also.

      The Court, because it is appointed by the Executive and Legislative branches, is biased in favor of granting more power to those branches at the expense of the sovereignty of the citizens.

      The loyalty of the elected officers should be to the electing citizens and no one else; not to the political parties, not to financial interests, not to groups of people who have made themselves dependent on government.

      Because of those two principle design flaws (there are others but they are not as critical) in the Constitution we find that the two dominant political parties control all levels of government, and that they appoint Justices who permit their duopoly of power to maintain a stranglehold on the citizen’s government, and to abuse the people.

      The cure to the priniciple diseases in government are fairly obvious. Change the method of appointment of Justices. Eliminate the effects of party, finance and dependency on the electees. These reforms require amendments to the Constitution.

      The sovereign has a flawed government. The sovereign does not accept personal responsibility for fixing the government, and casts responsibility to others, along with blame for the consequences of their flawed and abusive government. The sovereign does not accept the responsibility, and acts with the full knowledge that the problems of government will continue even to the point of destroying the government and the sovereignty of the people.

      Because the sovereign citizens in a democracy are many and are widely distributed, it is impossible for individuals to make necessary repairs. Pure democracy is a poor vehicle for driving the necessary repairs such as those that are needed in the Constitution. Only a well principled organization can drive such an effort.

      The central problem of American government is not that the Constitution is flawed beyond repair or that culture is corrupt beyond redemption. Rather, the problem is that the people who recognize the causes and solutions of the problems are unwilling to organize and act to implement the necessary solutions.

      The question of whether the sovereign citizens deserve the Constitution they have today I have to answer “No.” They are victims of the ever present good men who choose to do nothing.

  5. R Richard Schweitzer says

    Kevin,

    Given what seemed previously to be your Madisonian outlook, your comment quoted here creates dismay.

    “I am not sure I agree with your claim that liberty is not bound up in (“created by, or derived from”) the Constitution.”

    In presumed response to:

    “It is pretty well established (and accepted?) that individual liberty is neither created by, nor derived from, a Constitution. So, it would seem **The Constitution** (of whatever vintage, read as original words with original meanings, or as words to be interpreted) exists to define and delineate the mechanisms of government.”

    Of course, one has to accept that there is a broadly held misconception that “Americans get their rights **from**The Constitution. Perhaps there is some other semantic implication to the use of “bound up in” but it certainly does not include “created or defined by;” particularly with respect to **individual** liberty. Amazing!!

    It is true that The Constitution (ours) by defining and delineating the mechanisms of a federal government (particularly with respect to the impacts of those mechanisms on individual rights) defined and described particulars of a social order and relationships within it. But it certainly did not originate or create any individual rights or liberty.

    While its preamble states the objectives for the establishment of our Constitution, the Constitution itself does not create a purposive enterprise in its definitions and delineations.

    The “Authority” for our Administrative State has not come from the Constitution it has built slowly, but with accelerations, from the changes in the relationships within our social order, which have resulted in impacts upon individual liberty from increasing the functions of the mechanisms of governments to achieve social objectives politically determined.

    • Kevin R. Hardwick says

      Richard–

      Do I infer correctly that you reject the idea of “ordered liberty?”

      Similarly, do I read you correctly that you reject the teachings of Locke, Hobbes, and so on with regard to life in a state of nature?

      And finally, do I infer correctly that you reject the Christian teachings that a life lived in thralldom to sin is an unfree life?

      I am not sure just where you and I part company–but I take all three of these positions to be Madisonian.

      It seems possible to me that we are talking past each other–I look forward much, as always, to reading your thoughts.

      All best wishes,
      Kevin

      • Kevin R. Hardwick says

        Richard–

        Thanks–useful.

        On the meaning of ordered liberty, in the post of mine to which you responded, I wrote:

        “A corollary to this is the argument that American Federalists made in the 1790s–in the words of Alexander Addison, “liberty without limit is licentiousness; it is the worst kind of tyranny.” This, as I understand it anyway, is what we mean by the term “ordered liberty.””

        The argument here is actually fairly deep–it is grounded in an Aristotelian understanding of human psychology that emphasizes the importance of habit in the proper fashioning of adult rational faculties (on which Locke and other 17th and 18th century liberal theorists premised capacity for citizenship.) Stripped down hard, proponents of ordered liberty argue that law has a role to play in inculcating proper habits. Madison and many other of the American founders adhered to one or another version of this theory. (If anyone cares, the Pulitzer Prize winning historian David Walker Howe wrote an exceptionally good book on this issue, as well as a superb WMQ article titled “The Political Psychology of the Federalists” or something close to that.)

        The issue gets even more complex when you add in the Jeffersonian argument that the character of the American people matters for the continued existence of republican government in the United States. If law is instrumental in encouraging people to develop correct formative habits, and if character depends on proper habits, and if the continued existence of the republic requires people of the right character, then clearly there is a direct connection between law making and the health of republican government.

        I should add that while I am a competent student of the American founding, the real Madison expert on these boards is Greg Weiner, and I happily defer to his superior knowledge.

  6. gabe says

    Richard:

    You say:
    Of course, one has to accept that there is a broadly held misconception that “Americans get their rights **from**The Constitution. Perhaps there is some other semantic implication to the use of “bound up in” but it certainly does not include “created or defined by;” particularly with respect to **individual** liberty. Amazing!!

    Agreed – although i am not so certain about “defined by.” Clearly, many Americans operate under the incorrect assumption that their rights are derived from the Constitution – but this is not the case nor was it the theory of government upon which both Fed and Anti-Feds based the prospective government and their arguments for and against. Whether one argues for “compact” or some other “natural rights” basis, it was understood by all parties to the Framing that rights preceded the constitution. In my opinion this is correct.
    However, it can also be argued that those pre-existing rights are in some measure “defined by” the document if for no other reason than that it delimits certain rights or circumscribes rights by delegating other rights to a “national” (more so for some than others) government.

    As for purposive intent / structure, if by this you mean the undertaking of certain aims (welfare, bridgebuilding, etc), then I agree with you. However, this is not to say that there is no “telos” or object in mind. The purpose of the document and its attendant grants of power to the government was to assure order liberty and to limit the scope of government and the consequent tendency for tyranny. Moreover, on a more crass basis, it was clear that one of the objects or purposes was to provide for a vibrant “commercial” republic.

    I am not certain that we disagree or if we only are applying different definitions. clearly, your argument about “purposes’ as they have come to be realized today is of extremely great merit and one in which I wholeheartedly agree.

    take care and thanks for another fine post – it is well stated.
    gabe

    • Kevin R. Hardwick says

      Gabe–

      My argument–with which I believe Madison would have agreed, although that is not really all that important here–is not that Government is or is not the source of our liberty, nor that the constitution is or is not the source of liberty. Rather, I am arguing that the distinction does not matter.

      If, as the entire social contract tradition from Hobbes forward holds, government is *necessary* if we are to enjoy liberty, then it does not matter whether or not liberty is antecedent to government. It may, or it may not, but either way it does not matter, if our concern is to live in a society so ordered as to maximize individual liberty. Government is not optional–anarchy is not a viable option.

      All best wishes,
      Kevin

      • gabe says

        Kevin:
        “then it does not matter whether or not liberty is antecedent to government”-
        At first blush, I am inclined to agree, if perhaps, only not to appear disagreeable and also because i think the readers of this blog understand the context in which the statement is made.
        However, I believe that in a larger sense, it matters immensely.
        Certainly, Locke et al successfully argued that “liberty” is achievable / sustainable only within society (government). Anarchy is the ultimate end state of pre-society – that is not in dispute.
        The concern that i have is that absent a sense of pre-existing rights (let us simply call it liberty as modern notion of rights are inflated), liberty is then perceived as a grant from the government, or as in 16th – 17th century England at the sufferance of the monarch.
        Why then can not this liberty be constrained if it is simply the derivative of positive law or, as is the case today, expanded beyond all historical recognition.
        Why can’t the State decide that I can not possess a firearm, or contribute to a candidate of my choice, etc etc.? Any of the readers of this site may easily add to this list without much effort. If my liberty is solely the result of legislative action or constituent law, and given a “living” constitution what ultimately is my defense against the changing tide of opinion?

        But it is even more than this: consider that many who proclaim their rights to the fruit of another’s labor or wealth can fell justified in such claims because ultimately rights come from the Crown or the State and if the state so rules, then I am entitled to such “well- deserved” rights (of course, it is your property to which i have a right , not the reverse). Furthermore, all such actions, or as Richard ably advances “purposes”, instituted and effected by the State serve to reinforce this sense of “right” and, indeed, engender a certain moral rectitude in the minds of the beneficiaries.
        So it is, to my mind, a double edged sword that both serves to support the growth of the gargantuan State and to further diminish the moral character of the citizenry.
        The alternative is not anarchy but a moral people who fully understand that they are responsible for “ordered liberty” – not the State.

        take care
        gabe

        • Kevin R. Hardwick says

          Gabe–

          We are not very far apart. My main concern in my initial post to Richard was to foreclose that variety of utopian libertarianism that sees anarchy as a viable option. I took that to be one possible reading of Richard’s post, although it is not one to which Richard (at least as I read him) is committed. But is is a possible implication of what he wrote, and I wanted to write to argue against it. There certainly have been some people commenting on these boards who do espouse that kind of position.

          I think the great liberal philosophers of the 17th century nailed this particular issue. A state of nature, by which they meant human beings who live without government–is not a state of freedom, and is not conducive either to human freedom or to human flourishing. Government is necessary for liberty, and thus is not *always* an evil. There is a kind of paradox to this–I think of all of the liberal philosophers I have studied, Locke does the best job unpacking it.

          I certainly have no interest whatsoever in empowering people to believe that our rights and liberties exist at the suffrage of government, are privileges, and can be taken away as easily as they can be granted. That way leads to the absolutism of James II or Louis XIV, and is the path rightly to be condemned. So to the extent that what I have written can be construed in that fashion, then I have expressed myself poorly.

          I don’t think that liberty can exist without government. And that means that government is not always the enemy–to the extent that government creates the conditions under which human liberty can flourish, government is necessary, desirable, and beneficial.

          I ask this honestly: if government is a requisite for liberty, can it then be said that liberty pre-exists government? I don’t know-that’s why I used the langauge “bound up in,” which Richard quite properly criticized.

          All best,
          Kevin

  7. R Richard Schweitzer says

    Kevin,
    “Do I infer correctly that you reject the idea of “ordered liberty?” ” Probably, depending on what is inferred by “ordered.”

    “Similarly, do I read you correctly that you reject the teachings of Locke, Hobbes, and so on with regard to life in a state of nature?” Yes – because it is referred to as **the** state of nature, which I think is a conjecture. That applies to Rawls as well.

    “And finally, do I infer correctly that you reject the Christian teachings that a life lived in thralldom to sin is an unfree life?”
    “Thralldom” infers an unfree life. Despite Swiss Anabaptist and Norwegian Lutheran backdrop, I have cancelled my subscription to Christian-only teachings in re: Sin.

    You are the Madison scholar, and those points are not at issue.
    Did Madison conclude that individual liberty would be **created** by or **derived** from the instrument laid down at Philadelphia? Is that indicated in his words in the Federalists?

    Giving way to you on all else of which Madison may have been convicted, it would not include the Constitution as the source of individual liberty.

  8. R Richard Schweitzer says

    Gabe,

    You point out a big goof on my part.
    The statement should have been “. . . Created or **derived from,** rather than “defined by.” That latter expression opens an entirely different area of discussion; which you promptly took up. However, without going to deeply into that area, I do not believe that individual liberty is delineated by the document.
    You write:
    “Moreover, on a more crass basis, it was clear that one of the objects or purposes was to **provide for** a vibrant “commercial” republic.” emphasis added.

    If we remember that the document concerned the mechanics of governments (pl.) and thereby delineated or assigned roles as between states and federal, the term “provided for” may not be apt. Otherwise, it might be argued that the document (as amended) “provides for” freedom of the press and all the other elements touched on in the 1st 10 amendments (plus others) – as objectives, which they were not.

    The assignment of the role of power to regulate interstate commerce, the limitations on interstate tariffs, impairment of contracts, etc. were to eliminate the effects of the mechanisms of government upon commerce and not to “provide for” the enlargement of commerce.

    Forests have been felled to provide the material for attacks on and defenses of the applications of the Commerce Clause. Through its applications much of the Administrative State has been assembled in the periodic drives to make our federal government mechanisms a purposive enterprise.

  9. R Richard Schweitzer says

    To whom it may concern:

    Is the present character of our state

    derived from the wording of our Constitution

    or

    From the character of the members of our social order?

    What relationship does the character of our state bear to our Constitution; to what extent (if any); and what identifies or exemplifies that relationship?

  10. R Richard Schweitzer says

    Kevin,

    “Stripped down hard, proponents of ordered liberty argue that law has a role to play in inculcating proper habits.”

    There you have an example of “the depends.”

    As posted previously:
    “Law, in its old original sense, describes and defines, but does not necessarily delineate, the social order and the relationships within it. That Law does change as the social order and the relations within it change. Rules of Policy (legislation and its excrescences-which are given “the force of law”) describe, define and delineate a *desired* (intended) social order, the relations within it, its purposes and objectives. ”

    So the “law” that has a role to play in inculcating “proper habits” is really the Rules of Policy to establish conditions of human conduct, the desire for which may be determined politically or by forces other than the spontaneous results of human interactions.

    “Ordered liberty” consisting of “proper habits” **inculcated** by Rules of Policy, whether or not created by or conforming to majority actions (including those arising from concepts of Sin), while it may provide order, does not provide individual liberty.

  11. says

    Kevin, Gabe, Richard has originally said, ” …those mechanisms on individual rights defined and described (by the federal government are/added) particulars of a social order and relationships within it. But it certainly did not originate or create any individual rights or liberty. … which have resulted in impacts upon individual liberty from increasing the functions of the mechanisms of governments to achieve social objectives politically determined.”
    Interesting comments which I agree with. If “individual rights or liberty” is “described” by the federal government – we have exactly — what we are presently getting from them.
    I have read, and agree w/Kevin’s comment, “… Jeffersonian argument that the character of the American people matters for the continued existence of republican government in the United States”.
    If one were to ask me how I arrive at what I am agreeing with — my answer is –“Congress shall make no law … “.
    Respectfully, to all you wise gentlemen, John

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