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The Trouble With Constitutional Arguments

I do sometimes find odd the reverence many libertarians have for the Constitution. Often we hear arguments like "Well it's in the Constitution" to make an argument for, say, gold and silver as legal tender for example. This can cause problems however as it is often refuted by a typical progressive response of "well that thing was written 200 years ago, the world doesn't work that way now" or something to that effect. Of course, supporters of sound money know that this is a silly argument, but they set themselves up for it when using the Constitution to push their point. That's because, ultimately, the Constitution really is "just a goddamn piece of paper".

There certainly are many good ideas in the Constitution, such as yes, gold and silver as currency as well as the protections listed in the Bill of Rights. But we certainly can't ignore all the bad things about the Constitution. For starters, it created the federal government where there originally had been 13 largely independent States under the Articles of Confederation. It also explicitly gave that same federal government the power to tax and to form a "standing army". And we can't ignore that slavery is recognized in the Constitution, with Congress prohibited from limiting the States ability to import slaves as well as the infamous "Three-Fifths Compromise", which resulted in slaves counting as "3/5th" of a person for census purposes.

LewRockwell.com blogger Lawrence Vance recently noted 5 other points about the Constitution:

1. The Constitution was violated soon after it was adopted.

2. The so-called Civil War destroyed the Constitution.

3. The Constitution has failed to limit the federal government.

4. Those who talk the most about the Constitution (Republicans) violate it every chance they get.

5. The Constitution only means what the Supreme Court says it means. The Antifederalists were right and right again.

When Vance mentions the "Anti-Federalists" he is referring to those who were opposing the creation of this central Constitutional government because of concerns that, regardless of limits spelled out in the document, a strong central government was bound to eventually grow to an unlimited size until it eventually was worse than the government they had rebelled against. It's hard to look around today and not think that maybe, just maaaaaaybe, they might have been on to something.

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Glad to see

This topic has inspired so much great debate. I'm grateful for this community here, and it is amazing that such a wide range of opinions can exist under this here "tent". GO DP!

http://lionsofliberty.com/
*Advancing the Ideas of Liberty Daily*

Why not take a closer look at the debate about it?

That is what I don't get. Couldn't you learn more from the people trying to stop it from being adopted than reading something no one pays attention to today?

Stop and Think
What did the constitution replace?
What was wrong with the Articles? Think now, back to middle school history. It was too weak..no? Had no authority to raise a central army! And, Gasp!, Couldn't Levy Federal Taxes!

No Freaking way! That sounds like utopia compare to what the constitution has wrought. This my friend is actually a very sad day for liberty.

Read the anti-federalists-why not it was the actual debate?
http://www.lewrockwell.com/vance/vance106.html

http://www.lewrockwell.com/vance/vance107.html

See Tom Woods
http://www.tomwoods.com/blog/something-to-do-on-constitution...

See No treason: The constitution of No authority
http://www.lewrockwell.com/orig4/spooner1.html

The 18th Century Patriot Act

Like the Patriot Act, the TARP bill, and the Climate Treaty, the U.S Constitution was conceived and drafted in an atmosphere of panic that was created by proponents of big government for the express purpose of using fear to win support for a massive expansion of government power. Also like TARP or the Patriot Act, it was debated in secret by a convention of delegates that were told that unspeakable horrors awaited America if they did not pass it immediately.

The U.S. Constitution does not embody the American spirit. It is a document that grants power to government. The document that truly embodies the American spirit is the Declaration of Independence, which was written expressly to remove all power from the existing government.” - Tom Mullen, The 18th Century Patriot Act

[Only six signers of the Declaration of Independence also signed the Constitution. True "checks and balances" lie with nullification and secession, not the three-branched “separation of powers”.]

Whenever some brainwashed lib

or gov't paid comment troll says ""well that thing was written 200 years ago, the world doesn't work that way now"

I say "yeah, all that freedom, liberty, constitution and sound money stuff is soooooo outdated."

Cyril's picture

Those are often the same

Those are often the same who feel compelled to beg the Federal gov't for, and wag their tail to the always many more entitlements their little person "has rights to", and prompt to being condescending with Math or anything that requires minimal homework effort, while everything else they waste their time with is so "epic".

Mediocrity turned into virtue.

"Cyril" pronounced "see real". I code stuff.

http://Laissez-Faire.Me/Liberty

"To study and not think is a waste. To think and not study is dangerous." -- Confucius

Cyril's picture

The real problem is ... THE IMAGINARY CONSTITUTION

There is no problem with the Constitution, except for the 16th Amendment, and maybe the 17th. Hence, no problem either with constitutional arguments; they SHOULD BE ALL that matters, actually, if one wishes to discuss new laws ! Duh.

HERE IS THE REAL PROBLEM

The REAL problem is the INSIDIOUS BETRAYAL of LANGUAGE :

"Ron Paul has been warning us of the EVER CHANGING DEFINITIONS of words, and how this can easily lead us to DESPOTISM."

http://evangrogers.hubpages.com/hub/The-Debt-Ceiling-the-14t...

Read also :

Ron Paul on THE IMAGINARY CONSTITUTION

http://www.lewrockwell.com/paul/paul120.html

VERY important paper from Ron. Oft-overlooked or forgotten.

'Hope this helps,

Sincerely,

"Cyril" pronounced "see real". I code stuff.

http://Laissez-Faire.Me/Liberty

"To study and not think is a waste. To think and not study is dangerous." -- Confucius

Self-proclaimed monopoly on law

The Supreme Court ruled in 1803 that they have the power to decide if a law is constitutional.

So if they say Obamacare doesn't violate the Constitution, then it doesn't. The government gets the final say. They have a violent monopoly on law and its interpretation, so what is their incentive to be impartial and follow the "rule of law"?

From Wikipedia:

All government officers of the United States, including the President, the Justices of the Supreme Court, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader.

Anyone who thinks that The Rule of Law means anything is still sleeping.

http://laws.lp.findlaw.com/ge

http://laws.lp.findlaw.com/getcase/us/5/137.html
"The question, whether an act, repugnant to the constitution, can become the law of the land,... that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. [A]n act of the legislature repugnant to the constitution is void."

The unconstitutional act is void, holds no power to enforce.

The Patriot Act, NDAA, and others are repugnant to the Constitution and are therefore void.

The courts, failing to uphold the Constitution have violated their oath an act of treason.

The law is still repugnant to the Constitution therefore void.

Free includes debt-free!

The Constitution does not interpret or enforce itself.

The Supreme Court is the final arbiter of what is or is not Constitutional -- when that Court breaches its trust, there is NO legal remedy, only civil disobedience or revolution. When the Supreme Court says something is Constitutional -- it is, by definition. At least until someone lynches the bastards and installs a Court willing to rule otherwise. All in all, this is not really a very workable system, is it?

Recommended reading: The Most Dangerous Superstition, http://www.amazon.com/Most-Dangerous-Superstition-Larken-Ros...

10th Amendment and Article V

... are the second to last resort against a rogue Court.

- 10th Amendment - States have the power to nullify laws that they deem Unconstitutional

- Article V - gives the procedure to call a Constitutional Convention

Both of these are in the Constitution to address the circumstances we're in now.

In the event that these are not used, the Declaration of Independence and 2nd Amendment are the final resort. (granted rational people would rather things never have to that point but for sake of completeness: yes, they are valid recourse)

Nullification makes my head hurt.

Who has the last word, in nullification? The Supreme Court claims the right to nullify State laws it deems unconstitutional. The States have the 10th Amendment right to nullify Federal rulings they deem unconstitutional. So when the States and the Supreme Court issue conflicting rulings, do we need to go to war, to decide which authority prevails?

Recommended reading: The Most Dangerous Superstition, http://www.amazon.com/Most-Dangerous-Superstition-Larken-Ros...

Actually the Supreme Court

Actually the Supreme Court has no police force so isn't it possible that its own judicial review is merely empty letter? In fact, its police force is the people's outrage at their decisions being ignored, should they ever be. Of course no one really knows what the Court is and I think the Jusitices know that they have no real power, which is why they avoid conflict with the other branches so as to avoid exposing the man behind the curtain(see healthcare law).

Ventura 2012

Supreme Court

The Supreme Court is part of the same institution which the police force is also part of.

Since they work together, the Supreme Court is aiding and abetting the criminal police, and therefore the Supreme Court justices are guilty criminals as well.

Someone went to public

Someone went to public schools and wasn't taught the three branches of government, much less federalism.

Ventura 2012

Someone went

to public school and believed all the b.s. that was taught about the supposed separation of powers. How's federalism working out for ya? Looks good on paper.

Actually it worked out great,

Actually it worked out great, in fact it worked out a bit TOO well, like the Roman Republic and Athenian Democracy did, that people got filthy rich, lazy, decadent, and incapable of looking beyond their hedonistic desires. I presume your Somali anarchy would keep us at a subsistence level of survival where we would never become so besotted, lol. I guess that's something.

Ventura 2012

The rule of law

was never a serious intellectual concept, but a mystical cloak draped over the shabbiness of "government" rule. Men don't like to think that they have been made slaves by other men like themselves. Men wish to imagine some grandeur, some high principle by which they are "governed" (a much nicer word than "enslaved.")

"The Rule of Law" is the myth that "the law" will rule the rulers as well as the common citizenry. The myth implies that "the law" is created by something finer than men, and will be enforced according to some abstract principle of justice, rather than by the grubby self-interest of politicians and their subservient "law-enforcers." The myth tells us that even though the rulers have the power to change the law at will, enforce it or not as they choose, on whomever they choose -- they will not abuse that power for their own selfish advantage, or use it vindictively on their enemies.

It imagines, in short, that the law-makers are something finer and more honorable than normal men . . . that people who seek political power do so for only the highest, purest and most selfless of motives . . . stop laughing, dammit. Let's have some respect for our politicians here, don't . . . gotta stop now. Got the giggles.

Recommended reading: The Most Dangerous Superstition, http://www.amazon.com/Most-Dangerous-Superstition-Larken-Ros...

"The myth tells us that even

"The myth tells us that even though the rulers have the power to change the law at will, enforce it or not as they choose, on whomever they choose -- they will not abuse that power for their own selfish advantage, or use it vindictively on their enemies."

That is a HUGE strawman!

While I think the Supreme Court is an imperfect barrier to violations of the Constitution it has stood up to both branches of government(mainly Congress though but in some cases the Executive) MANY times to enforce an objective standard of the rule of law. And ultimately, the People are the protectors of the Constitution not the three branches.

Ventura 2012

the People.

And ultimately, the People are the protectors of the Constitution not the three branches.

If the People are the protectors of the Constitution, this means that if they so choose, they can decide to be the protectors of voluntarism.

Yes, the problem is they

Yes, the problem is they never will because the critical mass lacks the integrity and IQ to conceive of it.

Ventura 2012

IQ

Is their IQ high enough to have eternal vigilance?

No, and I think the wealth

No, and I think the wealth that capitalism brings is the seeds of its own destruction as wealth erodes vigilance.

Ventura 2012

cycle

So you're saying that it's a cycle?

1. limited government/vigilance
2. wealth is created
3. rich/lazy/no vigilance
4. big government/socialism
5. poverty
6. pissed off and vigilant
7. back to #1

That's pretty much it, yeah

I've read some material on this, and when I did it made perfect sense.

This is the pattern of human nature.

I think the incentives are in

I think the incentives are in place for such a cycle, yes. I think its what Jefferson was referring to when he said "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." I think its very crucial that we bust our ass in the second "pissed off/vigilance" stage because that's usually where even more hardcore forms of tyranny can take root. Sometimes these cyclical trends are positive ones. Cromwell's English Revolution was a (long overdue) assertion of rights. Other positive examples include the numerous lesser French revolutions that had to remove oppressive governments.

There is that critical stage, for ex: after the Constitution when the fascists(Federalists) tried to end freedom of speach via Alien and sedition acts and the Jeffersonians had to battle to assert themselves. Less happily, the aftermath of the French Revolution, Russian Revolution, Roman Republic, Iranian Revolution, and the fall of the Weimar Republic when the totalitarians seized control.

Ventura 2012

Strawman?

You mean, I assume, that our problems today arise from the fact that our politicians are NOT following the "Rule of Law," and the courts have abdicated their responsibilities to uphold it?

As justification for that view, you can point to past instances where courts have thwarted overreaching politicians -- I'm sure that's true. That does not change the reality that any laws made, interpreted and enforced by fallible human beings are more likely to align with the self-interest of the lawmakers and law enforcers than with the interests of the citizenry. When one group of people is given the power to impose rules on others WITHOUT the consent of those others, the inevitable result is tyranny. Politicians who enact tyrannical, unjust laws are not violating "the Rule of Law" -- they are using it. In their hands, it is a potent weapon of propaganda, a justification for the imposition of all manner of tyrannical "law enforcement" on those who would otherwise disobey.

When the politicians "pass a law," no matter how unjust and tyrannical, all the good folks who respect "the rule of law," feel themselves morally obliged and duty-bound to "obey the law." That's all that respect for "the rule of law" gets us -- acceptance of the politicians' right to rule us any way they choose. And when the politicians exempt themselves from their own laws -- we learn that the "rule of law" only applies when THEY use it against us.

Bmore, have you read the book in my signature line yet? Silly question. If I send you a copy, will you read it?

Recommended reading: The Most Dangerous Superstition, http://www.amazon.com/Most-Dangerous-Superstition-Larken-Ros...

You conceded too much by

You conceded too much by admitting that sometimes the system works. That means that there is something there real and tangible to be salvaged.

Its simply a false aggregation. People elect representatives that pass laws. The people can rise up to change those laws, in fact one can argue that a law that is against the people is not law at all. Its not as simple as "politicians ruling over us" in a republic and certainly even less so in a democracy.

Ventura 2012

I did WHAT?

I admitted "that sometimes the system works." -- where? That doesn't sound like me an all! :)

I guess I can admit that the government does perform some positive services -- badly, and by methods fully as evil as the evils they sometimes forbid and punish. Nothing I want to salvage there -- if a service is valuable, it can be privatized and paid for by those who value it. If some government "services" can't be privatized, it's because they shouldn't be done at all.

Recommended reading: The Most Dangerous Superstition, http://www.amazon.com/Most-Dangerous-Superstition-Larken-Ros...

"As justification for that

"As justification for that view, you can point to past instances where courts have thwarted overreaching politicians -- I'm sure that's true. That does not change the reality that any laws made, interpreted and enforced by fallible human beings are more likely to align with the self-interest of the lawmakers and law enforcers than with the interests of the citizenry. "

Of course you are constantly looking for that perfect Earthly Utopia, but to the rest of us this sounds like a system with some flaws that can be remedied or mitigated. No baby need be tossed out with the bathwater.

Ventura 2012

The exception does not make the rule.

Occasionally courts will overturn a bad law. Mostly they don't. And sometimes they overturn GOOD laws. Don't read that as an endorsement of government. Government is not a workable system with some flaws. It is a system of flaws that occasionally does something right. It is a system that cripples peaceable, productive social interactions, rather than facilitating them. Progress happens despite government, not because of it.

I'm not a Utopian. I'm a moralist. I believe that initiating force against peaceable folk is a moral evil. That's what government is and does, so I'm against it. May I suggest that the true starry-eyed Utopians are the folks who believe such an organization CAN be remedied or mitigated. "Just snip off his horns, and he won't be the Devil any more . . ."

Lots of folks will say that since evil people exist in the world, we need a government to protect us from them. I'm well aware that evil people exist. I'm just doubtful that giving a few of the MOST evil and power-hungry people the right to rule the rest of us is a good plan.

Recommended reading: The Most Dangerous Superstition, http://www.amazon.com/Most-Dangerous-Superstition-Larken-Ros...