The Right’s Made-up ‘Constitution’

From the Archive: Many Americans, especially Tea Partiers and Neo-Confederates, either haven’t read the U.S. Constitution or insist on distorting its plain language which established federal supremacy over the states and empowered the central government to “provide for the general Welfare,” as Jada Thacker noted in 2013.

By Jada Thacker (Originally published on July 6, 2013)

The Cato Institute’s Handbook for Policy Makers says, “The American system was established to provide limited government.” The American Enterprise Institute states its purpose to “defend the principles” of “limited government.” The Heritage Foundation claims its mission is to promote “principles of limited government.” A multitude of Tea Party associations follow suit.

At first glance the concept of “limited government” seems like a no-brainer. Everybody believes the power of government should be limited somehow. All those who think totalitarianism is a good idea raise your hand. But there is one problem with the ultra-conservatives’ “limited government” program: it is wrong. It is not just a little bit wrong, but demonstrably false.

Gouverneur Morris, a delegate to the Constitutional Convention and a key drafter of the Preamble. (Painting by Edward Dalton Marchant)

Gouverneur Morris, a delegate to the Constitutional Convention and a key drafter of the Preamble. (Painting by Edward Dalton Marchant)

The Constitution was never intended to “provide limited government,” and furthermore it did not do so. The U.S. government possessed the same constitutional power at the moment of its inception as it did yesterday afternoon. This is not a matter of opinion, but of literacy. If we want to discover the truth about the scope of power granted to federal government by the Constitution, all we have to do is read what it says.

The Constitution’s grant of essentially unlimited power springs forth in its opening phrases: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.”

As might be expected in a preamble to a founding document, especially one written under supervision of arch-aristocrat Gouverneur Morris, the terms are sweeping and rather grandiose. But the point is crystal clear: “to form a more perfect Union.” If the object of the Constitution were to establish “limited government,” its own Preamble must be considered a misstatement.

Enumerated Powers

Article I establishes Congress, and Section 8 enumerates its powers. The first clause of Article I, Section 8 repeats the sweeping rhetoric of the Preamble verbatim. While it provides for a measure of uniformity, it does not so much as hint at a limit on the federal government’s power to legislate as it sees fit:

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”

No attempt is made here, or at any other place in the Constitution, to define “general Welfare.” This oversight (if that is what it was) is crucial. The ambiguous nature of the phrase “provide for thegeneral Welfare” leaves it open to widely divergent interpretations.

Making matters worse for federal government power-deniers is the wording of the last clause of Article I, the so-called “Elastic Clause”: Congress shall have power “To 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.”

Thus the type, breadth and scope of federal legislation became unchained. When viewed in light of the ambiguous authorization of the Article’s first clause, the importance of the “necessary and proper” clause truly is astonishing. Taken together, these clauses restated in the vernacular flatly announce that “Congress can make any law it feels is necessary to provide for whatever it considers the general welfare of the country.”

Lately there has been an embarrassingly naive call from the Tea Party to require Congress to specify in each of its bills the Constitutional authority upon which the bill is grounded. Nothing could be easier: the first and last clauses of Article I, Section 8 gives Congress black-and-white authority to make any law it so desires. Nor was this authority lost on the Founders.

“Limited government” advocates are fond of cherry-picking quotes from The Federalist Papers to lend their argument credibility, but an adverse collection of essays called the Anti-federalist Papers unsurprisingly never gets a glance. Here is a sample from New Yorker Robert Yates, a would-be founder who walked out of the Philadelphia convention in protest, written a month after the Constitution had been completed:

“This government is to possess absolute and uncontrollable power, legislative, executive and judicial, with respect to every object to which it extends. The government then, so far as it extends, is a complete one. It has the authority to make laws which will affect the lives, the liberty, and the property of every man in the United States; nor can the constitution or the laws of any state, in any way prevent or impede the full and complete execution of every power given.”

Yates, it must be emphasized, took pains to identify the “necessary and proper” clause as the root of the “absolute power” inherent in the Constitution well over a year before ratification.

The Tenth Amendment

A particular darling of secession-prone, far-Right Texas Gov. Rick Perry, the Tenth Amendment is often claimed as the silver-bullet antidote for the powers unleashed by the “general welfare” and “elastic clauses.” Here is the text of the Amendment in its entirety: “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.”

Superficially, the Tenth seems to mean “since certain powers are not delegated to the federal government, then those powers are reserved to the states or the people.” This would seem to be good news for champions of limited government. But this is not the case.

The Tenth does not say that important powers remain to be delegated to the United States. It merely says that powers “not [yet] delegated” are “reserved” to the states or the people. This sounds like a terrific idea until we realize, of course, that all the important powers had already been delegated in 1787, four years before the Tenth Amendment was ratified.

As we have seen, the first and last clauses of Article I, Section 8 made the Tenth Amendment a lame-duck measure even as James Madison composed its words in 1791 and so it remains today. The sweeping powers “to make all laws necessary and proper” in order to “provide for the general welfare,” had already been bestowed upon Congress. The Johnny-come-lately Tenth Amendment closed the constitutional pasture gate after the horses had been let out.

This apparently has never occurred to the likes of Gov. Rick Perry and his far-Right cohorts who believe a state may reclaim power by withdrawing its consent, in effect repossessing their previously delegated power through state legislation. Superficially, the logic of this position seems sound: if the states had the legal authority to delegate power, then they may use the same authority to “un-delegate” it by law.

But a close re-reading of the Tenth’s wording nixes such reasoning. Oddly, the Tenth Amendment does not say the states delegated their powers to the federal government although it may be argued that it probably ought to have said so. It says “The powers not delegated to the United States by the Constitution are reserved to the States. ”

Thus, according to the Tenth Amendment, the Constitution itself delegated the power to the federal government. States, in other words, now have no standing to “reserve-back” what they had never “delegated-away” in the first place.

Had it been possible to “un-delegate” the powers of the United States by invoking the Tenth, the Old South would have simply done so and spared itself the bother of secession not to mention the bother of being annihilated by a series of subsequent Northern invasions. The fact that the South did not even attempt such a strategy attests to the toothlessness of the Tenth Amendment.

No other instance in law would be a better example that we should choose our votes carefully. For in ratifying the Bill of Rights, which included the Tenth Amendment, the American people endorsed the legal fiction that the Constitution not the original 13 states, or “We the People” authorized the power of the United States because the Constitution itself said so. If the Constitution has an Orwellian twist, this is it no matter which side of the aisle you’re on.

The states and the people may amend the Constitution. But they may not do so by nullification (according to the logic inherent in the wording of the Tenth Amendment), or by the judgment of state courts (according to the “supremacy clause” of Article VI), nor may any Amendment be made without the participation of the federal government, itself (according to Article V.) If the Founders had meant to ensure “limited government,” there is no trace of such intent here.

Paucity of Rights

If the Constitution were intended to provide “limited government,” we might expect it to be chock full of guarantees of individual rights. This is what Tea Partiers may fantasize but this is not really true. In fact, the Constitution is amazingly stingy in reference to “rights.”

The word “right” is mentioned only once in the Constitution as ratified. (Art. I, Sec. 8 allows Congress to award copyrights/patents to ensure their holders “ Right to their respective Writings and Discoveries.”)

The word “right” somewhat counter-intuitively appears only six times in the ten Amendments called the “Bill of Rights.”

Almost a century later, the first of seven other rights were added under pressure from Progressive activists almost all of which were intended to create and extend democratic participation in self-government.

Amendment XIV (sanctions against states denying suffrage); XV (universal male suffrage); XIX (women’s suffrage); XXIV (denial of poll tax); and XXVI (18 year-old suffrage); and twice in Amendment XX, which gives Congress the “right of choice” in presidential succession.

In grand total, the word “right” appears only 14 times in the entire Constitution, as it exists today (including the two rights conferred to government).

Did we all notice that the “Constitution of the Founders” did not include the “right” for anybody at all to vote? Notable, too, is the absence of language implying that any “rights” are “unalienable” or “natural” or “endowed by their Creator.” All such phraseology belongs to the Declaration of Independence, which apparently unbeknownst to Tea Partiers everywhere bears no force of law.

The word “power,” by the way, occurs 43 times in the Constitution, each time referring exclusively to the prerogative of government, not right-wingers. Since “individual” rights are mentioned only 12 times, this yields a ratio of about 4:1 in favor of government power over individual rights. Without the efforts of those pesky, democracy-mongering Progressives, who fought for universal voting rights, the ratio would be more than 6:1 today or 50 percent higher.

This statistical factoid is not as trivial as it may appear. Expressed in practical terms, Michele Bachmann, Sarah Palin or Clarence Thomas would almost certainly never have achieved public office had they lived under the “limited government” designed by the Founders they so revere.

The Bill of Rights

So what exactly are our non-patent/copyright “rights,” under so-called “limited government?”

Amendment I the right of people “peaceably to assemble, and to petition the government for redress of grievances”

Amendment II the right “to keep and bear arms, shall not be infringed”

Amendment IV the right “to be secureagainst unreasonable searches or seizures”

Amendment VI the right “to a speedy and public trial”

Amendment VII the right “of a trial by jury”

Amendment IX enumeration “of certain rights” shall not deny “others retained by the people”

That’s it. What happened to the famous rights of free speech, religion or press? The way the First Amendment is worded does not enumerate these as positive rights that people possess, but rather as activities the government may not infringe upon. If Bill of Rights author James Madison had meant to stipulate them as positive “rights” all he had to do was write it that way, but he did not.

Bear in mind Madison (then a federalist) wrote the Bill of Rights under political duress. Since anti-federalists (recall the skepticism of Robert Yates) flatly refused to ratify the Constitution unless it guaranteed something, Madison had to write something. In effect, the amendments were the pig the anti-federalists had bought in the poke, three years after ratification had paid for it.

Madison, at the time of writing, had little incentive to take pains with what he wrote because federalists did not believe a Bill of Rights was necessary, or even good idea (with Alexander Hamilton arguing a Bill of Rights would be “dangerous.”) This may account for the fact that some of what Madison wrote seems vague, or even ambiguous, as in the case of Amendment II.

Amendment IX, for example, actually makes little sense, which may account for the fact nobody ever seems to mention it: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

This sounds “righteous” enough, until we recall the Constitution to which this Amendment pertains had “enumerated” only a single right in the first place! Even if Amendment IX applies to the Bill of Rights (to include itself), then all it says is “the people may have more rights than the half dozen mentioned so far, but we’re not going to tell you what they are.” (So if Amendment X is Orwellian, Amendment IX verges on Catch-22.)

Of course the idea was to calm suspicions that people would possess only the half-dozen rights enumerated in the Bill of Rights (plus patents!) and no others. Even so, Amendment IX did not guarantee any un-enumerated rights; it just did not peremptorily “deny or disparage” any.

And what sense should we make of the crucial Amendment V one of the four Bills of Rights not actually containing the word “right” at all?

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” [Emphasis supplied]

Thus, life, liberty and property are not expressly granted status as fundamental “rights,” but only as personal possessions that may be deprived or taken according to “due process.” The crucial implication is that Amendment V exists in order to stipulate how the government may deny an individual claim to life, liberty or property. With due process, you life, liberty and property may be toast. That is what it plainly says.

It is interesting, too, that the Bill of Rights does not speak to the origin of rights, but only to their existence. Moreover, the Constitution never speaks of granting rights, but only protecting them. There is a good reason for this: excepting the Progressive suffrage Amendments, none of the guaranteed rights were American inventions, but had for centuries been considered the rights of the English nobility.

For those who want to believe in “American Exceptionalism” as the basis of “limited government,” this is not encouraging news. Moreover, the Constitution, including the Bill of Rights, hardly includes any “right” that had not already been recognized at one time or another by medieval English monarchs or in ancient Rome and Greece.

Property Rights and ‘Republic’

The strict libertarians among us claim the sole legitimate power of government is that which is necessary to protect private property rights. On this score, however, the “limited government” of the Founders is practically mute. Except for the aforementioned Article I, Section 8 provision for patents and copyrights, private “property” is only mentioned twice in the Constitution, both times in a single sentence of the “right”-less Amendment V quoted above:

“No person shall be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.” [Emphasis supplied]

Once again, Amendment V fails to guarantee personal immunity from the power of the state, but rather details the way state power may be used to dispossess individuals of their property. And we must bear in mind these words were not penned by Marxists, socialists, or Progressives.

Whether by design or happenstance, the original “Constitution of the Founders,” or the Bill of Rights, or even the Constitution with all its Amendments does not grant any irrevocable “right of possession” to property. Even the Second Amendment’s “right to keep” arms, is subject to the terms by which property may be taken under terms of Amendment V, and it always has been.

Tellingly, the word “democracy” does not appear in the Constitution. This intentional oversight is often smugly celebrated by anti-democrats among us, who insist that the United States of America was founded as a “republic.” No doubt this is true, given that the Constitution was written by an exclusive, hand-picked cadre of oligarchs, whose number did not include a single woman, person of color, or wage-earner.

Unfortunately for the pro-republic “limited government” crowd, the Constitution does not contain the word “republic” either. The word does appear as an adjective, but only once, (Article IV, Section 4): “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them from Invasion”

Typically for the Constitution, which defines few of its terms, the word “Republican” also remains unexplained. The ambiguity of the term turned out to be handy, however, as Radical Republicans continuously and egregiously violated Article IV, Sec. 4 from 1865-1877 as they enforced blatantly unconstitutional military occupation of former Confederate states during the gross misnomer of “Reconstruction.”

It should be obvious that the “Constitution of our Founders,” including the Bill of Rights, may not protect as many rights as many wish to believe. Moreover, we have already noted the Constitution dropped all revolutionary talk of “unalienable” rights and “Creator endowed” liberty. This was not an oversight.

The revolutionary bit about “consent of the governed” posed an especially delicate problem for the Founders. Almost all owned slaves or were masters of property-less tenants or domestic servants, including their wives none of whom could offer their legal consent even if they wished to do so. Thus the Founders shrewdly considered it unnecessary to include any voting rights in the new republic they planned to rule, uncontested by the disenfranchised lower castes.

Did this result in the land of the free, with liberty and justice for all? Let’s see.

Under the U.S. Constitution, Americans were sentenced to death for protesting unfair taxes; journalists and citizens imprisoned for criticizing government officials; citizens’ property seized illegally; workers murdered by government agents; thousands jailed without the “privilege” of habeas corpus; entire states deprived of civilian courts; untold numbers of American Indians defrauded of  liberty and property; debt-peonage and debtors’ prisons flourished, as did slavery and child labor; and the majority of the public was denied the vote.

All this was considered constitutional by the Founders. None of these outrages, please note, was the result of “progressivism,” which had yet to be articulated, and all were common prior to the New Deal and the advent of so-called Big Government. Was this the face of “limited government?”

No, it was not. The concept of a democratically “limited government” was not for a moment entertained by our Founders, nor is it by those who idolize them today. With few exceptions, the Founders were Eighteenth Century patricians who took a revolutionary gamble meant chiefly to perpetuate their privileges, free from English colonial overlord-ship. It should come as no surprise these elitists drafted a Constitution that posed no threat to aristocracy.

‘Limited Government’ as Act of Faith

The original Constitution of the United States of America was just so much ink on paper. The Constitution, as it stands today, is just a lot more ink on paper.

But the Constitution’s ink is important and deserves respect because it represents nothing less than the collective civic conscience of the American people. A great many Americans have dedicated their lives in trust to that conscience on battlefields, in classrooms, in everyday civic life, and even a few in the halls of power.

It is evident that most of the Amendments to the original Constitution as well as the Supreme Court’s decisions interpreting its scope and purpose were made because the document had over the course of time been found wanting by the American people, whose common interests it was not originally intended to serve. As the collective civic conscience of the people changed, so too did their interpretation of self-government.

But the entire concept of social evolution (much less biological evolution) is something the ultra-Conservative rank-and-file likely does not comprehend and it is not something their leaders encourage them to consider. The reason for this may have less to do with politics than with fundamentalist faith.

An anecdote in point: the editor-in-chief at Random House once asked the extremist libertarian Ayn Rand if she would consider revising a passage in one of her manuscripts. She reportedly replied, “Would you consider revising the Bible?”

Ergo, that which is sacrosanct neither requires nor will tolerate change to include the fantasized “limited government” of the immortalized “Founding Fathers.” The fact that Rand was a noted atheist only underscores the point that fundamentalist faith is not restricted to any particular brand of fanaticism.

Yet the Constitution’s conception was anything but immaculate. It was not carted down from the Mount in tablets of stone, nor is it the product of some mysterious Natural Law interpretable only by libertarian gurus. And whether its meaning is best exemplified by the Tea Party flag depicting a talking snake (“Don’t Tread on Me”), perhaps only Eve could judge with authority.

The Constitution is not a holy book, and there is no good reason for anybody to treat it like one. The men who wrote it were not prophets, nor were they particularly virtuous, though some could turn a pretty phrase. In fact, the Constitution’s most unholy-book characteristic is its most welcomed attribute: its readers are not required to believe in its infallibility in order for it to make sense to them.

But we are required to read the Constitution if we want to know what it says. The ultra-conservatives’ obsession with a constitutionally “limited government,” which has never actually existed, suggests they do not understand the Constitution as much as they merely idolize it.

These constitutional “fundamentalists” along with the American public in general would do better to pick the document up and read it sometime, not fall on bended knee before it and expect the rest of us to follow their example.

Jada Thacker, Ed.D is a Vietnam veteran and author of Dissecting American History. He teaches U.S. History at a private institution in Texas. Contact: jadathacker@sbcglobal.net

 

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22 comments for “The Right’s Made-up ‘Constitution’

  1. Joe Tedesky
    July 1, 2015 at 1:53 pm

    If I were to add something it would be crafted to say, “take the influential money out of government’. Add to that am amendment stating, “all news media to be small and privately owned”, no more conglomerate news. We may want to work on a few things, yet!

  2. Zachary Smith
    July 1, 2015 at 9:27 pm

    Darned good essay.

    • Peter Loeb
      July 3, 2015 at 7:17 am

      THANKS!

      —-Peter Loeb, Boston, MA, USA

  3. Anonymous
    July 2, 2015 at 12:54 am

    Right and left politics in the US has become very gray as of late.

    Quoted from the article: “Notable, too, is the absence of language implying that any “rights” are “unalienable” or “natural” or “endowed by their Creator.” All such phraseology belongs to the Declaration of Independence, which – apparently unbeknownst to Tea Partiers everywhere – bears no force of law.”

    In the case of the US, it is assumed by the vast majority that the spirit and intent of law is to promote what in part is stated in the Declaration of Independence, roughly paraphrased as, “unalienable equal rights for all towards the pursuit of liberty, justice and happiness.”

    Many laws are open to misinterpretation, intentional or otherwise. Assuming laws were meant to be ethical, intentional misinterpretations are likely not ethical in respect to the original spirit and intention of any specific law or what is (believed to be) the spirit of our laws in general.

    Certainly under common belief, if the existing banking laws were widely recognized as an instrument to enslave the people or the country, they would not be considered legal; but in fact they do enslave individuals and large groups of people.

    Human nature and personal integrity seem to come into play here — as there is ample evidence to suggest that literal deception, if not intended, was present in the Declaration of Independence when, for one, it referred to “all men” which we interpret today as all humankind regardless of race or gender. So, was the true spirit underlying the wording of our founding legal documents meant to deceive citizens into thinking we’re “free” with equal liberty and justice for all?

    The “law” itself becomes the tool tyrants and dictators when selectively enforced and can be the equivalent of no law at all or law that legalizes discrimination and inequality. Any favoritism or preferential treatment toward one person or group, at the expense of someone else or while denying others the same “rights”, is automatic discrimination and inequality — as recently exampled with the huge failure of the government to prosecute US bankers and US war criminal officials in spite of their egregious violations of US and international laws. And what should we make of the phrase within the Declaration of Independence that states it is our “duty” as citizens to throw off tyranny in whatever form it may exist?

    These violations of our freedoms ultimately amount to various forms of taxation (including through loss of life) that, in these two cases, enriched the politically connected bankers and military industrial apparatus as well as the politicians they make campaign “contributions” to.

    The concept and promise of freedom and liberty in the US, as believed by the propagandized people, has been hijacked by corporate and special interests seeking “liberty for themselves” to impose on others through favorable legislation, distortions and (mis)-interpretations of our original and succeeding laws.

    We have no democracy with equal opportunities toward liberty and justice. We do not have nor promote true capitalism with written laws or through the practice of enforcing the law while exempting favored parties and simultaneously discriminating against “we the people”.

    The case could be made that the US Constitution was written with the intent to be ambiguous — leaving wiggle room for those intending to use it (and us) for un-meritorious and self-serving purposes — this calls into question the true spirit and intentions (ethics) of the original authors and signatories, as well as spirit and intentions of those amending and interpreting the law throughout our history and on a case by case basis today.

    America might best be thought of as one big free-for-all — with political connections, through campaign contributions, reigning supreme over all and being the deciding factor in determining what any person or group can “get away with”, Tea Party or otherwise…

    • Mark
      July 2, 2015 at 7:45 am

      Mr. Parry, In case you happen to see this — You may or may not be aware that there are some glitches in the program when it comes to making “comments” here on consortuimnews.

      Comment postings are being delayed at times with no explanation or confirmation given — leaving one to wonder if any comment submitted might have gotten lost in cyberspace — and hence, in my case, I repost only to later find duplicates.

      And with all sincerety, thanks for all you do concerning the spreading of honest news and information…

      • Consortiumnews.com
        July 2, 2015 at 9:16 am

        Mark, our system uses a program that is supposed to look for spam or other problematic comments. It works well on the spam but sometimes scoops up legitimate comments by mistake. We then periodically try to recover those comments. My apologies for any problems that this system causes. Without it, however, we’d be inundated with spam and abusive remarks.
        Robert Parry.

  4. Thomas Howard
    July 2, 2015 at 5:49 am

    Of course a ‘collectivist’ pushes for unlimited government, it’s the power to control and corrupt.

    The topic of individual freedom never arises.

    Freedom scares a bootlicker, they prefer licking boots.

  5. Begemot
    July 2, 2015 at 1:58 pm

    This article supports the idea that the Constitution was in fact a counter-revolutionary document. The Antifederalists were right. Adopting the Constitution unleashed a centralizing government of vast powers on the people of America. Bad news for the people but good news for the rent seeking elites represented by the likes of Hamilton.

    • Jada Thacker
      July 3, 2015 at 3:26 am

      Begemot

      Terms are slippery things if not rigorously examined.

      I agree the Constitution could be considered a counter-revolutionary document — but only if one believes the Revolution was actually revolutionary in the first place and not just a change of oligarchs.at the top.

      • Brad Owen
        July 3, 2015 at 11:56 am

        How about the possibility of there being MANY differing Factions that supported the Revolution, ranging from Thomas Paine-type radical republicans, to Baronial, “change of Imperial Regime”-types who simply wanted to supplant King George III with an American, de-facto Emperor, on a de-facto American Throne, ruling an American Empire of Baronial “Aristocratic-Republics”?…and varying shades-of-gray between these “black-‘n’-white” extremes?

  6. Jada Thacker
    July 3, 2015 at 2:14 am

    Mark

    I think your ethical views are commendable. But consider that the purpose of any law is to force somebody to do something they would not do voluntarily, or prevent them from doing what they would ordinarily do. In this respect, for example, the Ten Commandments and the Bill of Rights are similar. Both are coercive. The former is meant to restrain personal behavior, the latter to restrain governmental behavior. The outcome of any law is that one party always benefits at the expense of another.

    Law is necessary for what we now call civilization, after we learned how to spell it..The question is whose interests civilization serves. The answer of course is the lawmakers.

    But who are they?

    • Mark
      July 3, 2015 at 7:50 am

      Jada, Your statement: “The outcome of any law is that one party always benefits at the expense of another.” — suggests that equal liberty and justice for all cannot exist regardless of how “civilized” any society might attempt to be.

      With my understanding, the spirit, intent and “purpose of US law” is (supposed to be) to provide equal rights to all to the greatest extent possible. (Possibly I’ve allowed myself to be misled in this respect.)

      Unless I’m mistaken, the best way to promote equality is to prohibit people from imposing on each other.

      If the law grants racial, religious or economic favor to one or more groups over others — this is automatic discrimination against someone else and automatic inequality of rights concerning liberty or justice in various pursuits — in fact any favoritism promotes inequality and injustice by allowing some to exercise their privilege to benefit from it at the expense of others.

      The idea of us being civilized seems but an illusion or delusion, but that might be dependent on how we define “civilized” and in our case it might best be described as “civilized inequality and violence”.

      If inequality reaches a high enough level, “civilized inequality” can lead to unrest, anarchy and complete chaos — can we honestly call it civilized if that’s what it leads to?

      Assuming the amount of civility could be quantified; on a scale of one to ten, I can’t help but wonder how civilized the US is when compared to other countries, or even past civilizations on a purely domestic basis while considering violent crimes, incarceations and thefts of any kind, slavery and economic exploitation in various forms etc.

      And on a one to ten scale, how civilized are we really when we’ve granted ourselves the privilege to intentionally pervert international law for the purpose of imposing a combination of what is self-proclaimed superiority concerning racial, religious, and economic privilege over others by the willful taking of life to comandeer and otherwise pillage and plunder resources in foreign lands?

      • Jada Thacker
        July 3, 2015 at 1:41 pm

        Mark

        When I say ‘civilization’ I mean it only in a technical sense: a society sufficiently complex to have achieved the building of cities. Civilization thus requires division of labor, which means some people must depend upon strangers for their food supply. This practically guarantees a class-based society where some claim privileges denied to others. Thus, the employee cannot fire the employer.

        It is well to say “…the best way to promote equality is to prohibit people from imposing on each other.” But how does this work in practice in a society made up of employers and employees? Most Americans spend their entire working life being imposed upon by another.

        Certainly we may attempt to use law to ensure a measure of justice (meaning that a person gets what he or she deserves). But since all law favors some party over another, it is quite impossible to use law to guarantee equality. When litigants walk out of a courtroom, one walks out a winner and the other a loser no matter how fair the proceedings may have been.

        Our Declaration of Independence tried to side step this quandary by assuming it away: “We hold these truths to be self-evident, that all men are created equal…” But government was still needed, Jefferson said, “to secure these rights.” Let’s see what happened.

        When the founders wrote the Constitution the “self-evident truth” of “equality” was conspicuously omitted. Back to square one. We had recreated ourselves in the virtual image of the empire against which we had rebelled. But that is not the story we tell in school.

        It is my opinion that social equality is inconsistent with the existence of government. When we observe human groups, we find that the most egalitarian societies were those of tribal hunting peoples. Such societies had leadership, but no government as we know it. Formal coercive power over an individual simply did not exist because no person ultimately could control the food supply of another. Indeed, the food supply of all was dependent upon the mutual cooperation of all. There were no employers or employees.

        It is said that a Cherokee once told a white man, “White brother, when you came to this land there were no debts. There were no taxes. And women did all the work. Now you tell us that you will improve the way we live?”

        All I can add is that it appears women still do most of the work.

        • Mark
          July 3, 2015 at 4:26 pm

          So it’s all just alot of words with no substance. If everything concerning equality, liberty and justice is a lie, then does a US patriot patronize the lies or rebel against them?

          At the moment I don’t believe that each and every law favors someone over someone else; a verdict certainly can, but the law itself generally should favor equality in opportunity for obtaining justice and be biased in favor of that to the greatest degree possible.

          The system is so prone to arbitrarily biased rulings and interpretations, that opportunity for justice would be better served in some cases by flipping an unbiased coin or drawing unbiased numbers out of a hat.

  7. July 3, 2015 at 3:20 am

    Dr. Thacker,

    Just got a chance to read your article. Glad to say I can concur with several points you make. Yes, the Constitution is certainly not to be confused with sacred writ. Yes, the Founders attitude toward democracy per se was largely negative like many ancient Greco-Roman historians, orators, and philosophers with whom they were so familiar. Yes, their conception of the proper powers of government and the rights of citizens was indebted to Old World precedents and experience as much as anything else. And yes, the concept of American exceptionalism is often abused if not altogether mischievous. (It may have a proper use as in Tocqueville’s “Democracy in America.”)

    However, as interesting as your piece was, I cannot say I concur with your main contention: the Constitution was all about empowerment of centralized government, not its limitation. And the reason has to do with your methodology. It is not possible to understand aright this or any document just by reading its supposedly plain language. Plucked from historic context it can be taken all over the map interpretively. There are ambiguities, of course, in various phrases employed in several places, but sound interpretation is possible, if not easily accomplished, by paying careful attention to the record of the debates in the Philadelphia Convention as well as in all the special state ratifying conventions. The latter, in fact, are even more important than the former because the state conventions alone gave legal force to the document. Otherwise, it would have been perhaps just an interesting brain-storming session by the Philadelphia delegates. Madison himself, who of course started out and seemed to end his career as one of the more nationalist-oriented founders, conceded this point. When asked what the proper interpretation of the Constitution was he referred his questioner to the consensus of the conventions (plural) that put their imprimatur upon it. That for Madison represented the understanding of the people. (thus the rather aristocratic Founders did defer to the people in some significant measure, though not as much perhaps as you or many of us today in an age of more democratic sensibilities would like.)

    More could be said but I’ll simply note that most of the phrases and clauses you touch on were thoroughly debated in Philadelphia itself and in the states. And for the most part the interpretation you assign to things (like the wording of the preamble or “necessary and proper clause” or tenth amendment) would at best be a minority report or not even that. Perhaps you are aware of this, but I did not detect in your article much if any attention to the record of convention debates. To your credit you did make some reference to both “The Federalist” and anti-federalist writings which are voluminous and of course should be added to the interpretive mix.

    Personally, I think it’s clear that in comparison to the system set up by the Articles of Confederation, the Constitution in some important respects empowered central government but in others retained the limitations of the original order. And clearly there were fathers who could best be called nationalists (America as new nation-state) and others as federalists (holding to principles of ancient confederations). It was Elbridge Gerry of Massachusetts (a true federalist at heart) who objected so colorfully to the federalist/anti-federalist dichotomy, saying rats vs. anti-rats would have rung truer.

    Thus the stage was set from the beginning for a grand historical struggle over where the powers of Washington end and those of “the States and the People” begin. This is unquestionably the political background for the Civil War (not to say that slavery and other cultural and economic issues weren’t in the foreground) and just about every other tussle in American history. Seems we have yet to settle the matter.

    I hope I have not been too negative on your article. As a teacher of students you have my utmost respect (I know firsthand how difficult and demanding the profession is). Having put the viewpoint expressed above on the table for the sake of learning and discussion and nothing else, perhaps it will do some good. And of course, you and others are now free to critique it however you like.

  8. July 3, 2015 at 3:49 am

    Gentlemen,

    I’m sorry. Re-reading my piece more carefully I did not mean to suggest that debate on the tenth amendment occurred in Philadelphia in 1787. Of course, that came afterward, although the states themselves in taking up the question of ratification proposed many amendments for consideration (can’t recall what the total was).

  9. Jada Thacker
    July 3, 2015 at 3:41 pm

    Charles

    “It is not possible to understand aright this or any document just by reading its supposedly plain language. Plucked from historic context it can be taken all over the map interpretively.”

    It appears you do not disagree with my methodology so much as my thesis that the Constitution’s own words belie the claim that it provides only for limited government. It is all very well to pour over debates between highly interested parties two centuries ago, but in the final event it was the words that were ratified and with which we are stuck.

    Do you seriously think that reading the text of a document in order to see what it says is tantamount to “plucking it from historical context” in order to interpret it “all over the map?” I would contend quite the opposite: that the opinions of the snake oil salesmen who peddled the Constitution to the public were those who interpreted its plain language all over the map.

    The problem today is that hardly anyone has read the Constitution, yet a great many claim to know what it was intended to accomplish. It does not improve matters to suggest, as you do, that even those of us who do read it are incapable of understanding what its words mean.

    • J M Dillard
      July 4, 2015 at 12:12 pm

      A wonderful read, thank you! Also let me add my appreciation of your responsiveness to all the comments. And you saved the best one for last:

      …I would contend quite the opposite: that the opinions of the snake oil salesmen who peddled the Constitution to the public were those who interpreted its plain language all over the map…

      A delightful choice of words to pull a student back to the reality of the facts.

  10. July 3, 2015 at 10:03 pm

    Jada,

    Thank you kindly for the courtesy of your thoughtful reply. Perhaps I misunderstood what I thought was your main point, and your clarification was helpful. Thank you also for this opportunity to clarify a little of what I was trying to say.

    It seemed as though you were saying more than that the text of the Constitution undoubtedly falsifies the claim that “it provides only for limited government” as many on the right presume. I conceded that gladly by observing that the text clearly buttresses several important powers of the central (US) government in contrast to what existed under the Articles of Confederation.

    Seemingly you went beyond that to claim that the document offers no limitations to the powers of the US at all. That was the thesis I was taking issue with. If I misread what you were trying to say, which is entirely possible, you have my apology.

    Additionally, I do not believe that you need an immersion in all the convention debates to understand everything in the document. Of course, much of the text consists in “nuts and bolts” procedural matters of the various established branches or methods of amendment or impeachment and such. Many things are quite plain. However, as you seem to acknowledge, there are a number of general or ambiguous phrases that could be taken in a variety of ways or given what the Framers would have considered “fanciful constructions.” At such points, and they are crucial points indeed, a knowledge of the debates over the meaning of the phrases–the debates of both the authors and ratifiers of the document–is indispensable. However, and again I thank you for the opportunity to clarify, I am not saying a plain reading of the text is useless. It can truly get you somewhere, just not all the way home. Probably the same can be said of reading the Bible (as you referred in your article to “sacred writ”). But we don’t need to go into finer points of theology here.

    My position is that the historical context (not just the text which of course is part of the history itself) but the debates of the constitutional period and beyond that the history of the early republic at least to the Civil War (and even beyond the war) leave no doubt that limitation of US powers (as well as legitimacy of powers) was a great concern of leading Americans, officials and citizens alike. The so-called political right, whether tea partiers or neo-confederates or whoever, is not in la la land for stressing such limitations, however clumsily they may proclaim them or whatever errors they may otherwise commit in their presentation. I am saying, however controversial on this vitally important website, that history does not negate their position. They do have a case, as do those who point to the greater centralization of powers characteristic of consolidated nation-states. As I stated, I believe both schools of thought (federalism and nationalism) were locked in contention from the beginning. Perhaps I’m wrong, but that’s what rings true to me in my own survey of the American story.

    Not to be overlooked, Jada, I caught your remark about what was likely a good measure of dishonesty or dissimulation in the constitutional debates, particularly on the side of those pushing the Philadelphia Constitution. If I understood you correctly on this, I think you’re right. Those who came before us, as well as ourselves, are always faced with some uncertainty as to whether we are being dealt with (or dealing with others) honestly. I think we can work and pray, with Robert Parry, on behalf of good will, that it ultimately prevail.

    Best wishes,
    Charles

  11. July 3, 2015 at 11:01 pm

    Jada,

    Thanks so much for your kind reply. Deeply appreciated.

    I did try to respond in some depth to your thoughtful comments, and it took me about an hour to do so. I posted it, and now I see it has not appeared. I do not know why. A line came into view when I first posted saying the remarks were being moderated. I didn’t think much of it at the time and went about my business.

    I can assure you my reply was courteous and respectful as well as marked by a careful clarification of what I tried, perhaps inadequately, to say in the original post.

    Needless to say, I am disappointed that you and others never received my remarks. It would be a bit much now to try to recapitulate what cost me a good deal of time and effort. If the website could recover my post (submitted about 10:05 est. on July 3), I would be very appreciative.

    Best wishes
    Charles

  12. July 4, 2015 at 1:13 pm

    Well, I suppose most of this is a moot point anyway with the imminent passage of the trio of “free trade” agreements coming down the pipe. Still, a very interesting and enlightening piece, well done. Fact is we no longer live in a democracy, if we ever really did. Electronic voting manipulation has been blown wide open, plus Gilens and Page proved that the opinion of the people mean nothing, statistically. Corruption is legalized by Citizens United, regulatory agencies are each and every one captured by their relevant industries, and the justice system is a joke. Also you Jane the fact that lying in political campaigns is considered protected free speech, and the two-party duopoly with only rhetoric defining the difference between them for the most part gives us little choice of electing representatives who would do anything of substance for the people above the minutes interests, if they ate even elected fairly. Anyone who would truly rock the boat is swiftly taken out, marginalized, given no chance to change the status quo.

  13. July 10, 2015 at 8:31 pm

    Jada: good job, thanks.

    It is heartening to see expounded here in parallel the basics of my 1997 book “Hologram of Liberty” (updated in 2012 to anticipate the SCOTUS decision on Obamacare).

    The Constitution was, in effect, a coup d’etat over the the confederated States. Its language was very often disingenuous. “Necessary” laws were allowed for the USG, but the States were restricted with “absolutely necessary”. Hamilton always envisioned interstate “commerce” powers to encroach internally upon the States and people (as he admitted in 1791 in his Report on the Manufacturers, in disagreement with his own assurances in The Federalist three years earlier before ratification).

    The Bill of Rights were a rushed and begrudged sop.

    There is no “fixing” the Constitution to achieve a truly limited republic. (I list the amendments needed for such, and they total three pages.) The only answer I see is that the States withdraw from the arrangement just as the Founding Lawyers of 1787 withdrew from (without the required unanimity) the Articles of Confederation.

    I.e., we must: Wake up. Start over.

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