“Your Constitution is all sail and no anchor.”
- Lord Thomas Macaulay (1857) A tiresome plea I have heard throughout my adult life is that urged by most political conservatives: “we need to get back to the Constitution.” While there is no doubt that the powers of the federal government have greatly expanded since it began operating in 1789, the presumption that various words were added to or deleted from the original text " other than the amendments arising after the “Bill of Rights” " is incorrect. The same words that define the scope of federal power, and those that assure individual liberty, are present as they were when George Washington took office. What possible complaint could be voiced about the modern exercise of governmental authority?
Those who speak of governmental abuse of its powers forget the first lesson to be drawn from the coercive nature of
all political systems: each derives its existence by the
conquest of some by others. Those who continue to delude themselves with “social contract” theories of the origins of the state, ignore its fundamental character as a monopolist on the use of violence within a given territory. “Contracts” arise out of
voluntary transactions between or among individuals who freely choose to commit their energies or other resources to some agreed-upon purpose. No more can a system of slavery be rationalized on contract grounds than can a voluntary system be set up in which one party enjoys a monopoly on the exercise of violence.
The second lesson to be learned has to do with the inherently uncertain and inconstant nature of words. When Alfred Korzybski declared that “the map is not the territory,” he was reminding us that the words we use to describe things are not the things themselves. The word “water” will not quench your thirst; nor will the word “liberty” provide you with any freedom. When I hold up a drinking “glass” to my students, and compare it to the “glasses” I wear, I am quick to remind them that neither of these items are made from glass, but from plastic.
With an awareness of the haziness associated with words, we can then examine their usage in a constitutional context. Because words have no objective meaning to them, they must be interpreted; applied to a given set of facts. But who is to do this? In the Anglo-American legal system " which includes the interpretation of words in the Constitution, statutes, contractual agreements, etc. " such a task has been assumed by the government court system! The state’s courts " and, ultimately, the Supreme Court " enjoys the power to interpret what the government " in the exercise of its monopolistic authority " is empowered to do. Through its judicial enforcement branch, the state gets to interpret
the range of its own authority! How has this come about? Those who still cling to the illusion that the Constitution
limits government power can search in vain for any language in that document that confers upon the Supreme Court any powers of judicial review; any authority to pass judgment on the actions of the other branches of government. In the landmark case of
Marbury v. Madison (1803),#1 the Court " in an opinion written by Chief Justice John Marshall " adroitly usurped such authority. Subsequent courts and lawyers have as carefully avoided questioning this action as most Judeo-Christian churches have been unwilling to challenge the Book of Genesis explanations for creation.
With its monopolistic powers of constitutional interpretation established, the Supreme Court has proceeded to inform us what the key operative provisions of the document mean. Highlighting the more significant powers granted to Congress in Article I, Section 8, the following language stands out: “Congress shall have Power . . . to pay the Debts and provide for the common Defence and general Welfare of the United States.” One could end his or her inquiry right there. But the framers went on. As if such powers were not sufficient to establish unrestrained governmental decision-making, this section goes on to give Congress the authority “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. . . .”
If I were given the power to “provide for the common defense and general welfare” of America, and to “make all laws which shall be necessary and proper” for my exercise of authority, what could I not do, particularly if I enjoyed the monopoly to interpret these words? “Defense” against what? Any threat that I chose to name? Would any pet project of mine foster the “general welfare,” particularly if I, alone, enjoyed the authority to define these words? Who, besides myself, could determine what other laws would be “necessary and proper?”
Do you begin to grasp the meaning of Lord Macaulay’s words? Do you understand how the constitution empowers the state to do virtually anything it chooses, subject only to the extra-constitutional resistance it might encounter from its citizenry? Might you have some appreciation for the modern words of Anthony de Jasay, whose response to the idea of “limited government” was to note that “collective choice is never independent of what significant numbers of individuals wish it to be”?#2
But the powers of interpretation continue. To whom does federal authority, as well as “Bill of Rights” protections extend? To “persons.” And “persons” are clearly understood to mean “human beings,” right? Not quite! Dred Scott, had the arrogance to believe that a congressional statute had the effect of terminating his slave status when his master transported him to the Northwest Territories. While he was clearly a
human, he remained the “property” of his master, which the federal government could not take.#3 Eight years later, the 13th Amendment was ratified, prohibiting “slavery” as well as “involuntary servitude,” a measure that ended, by its clear language, any “servitude” that was “involuntary.” Right? Through its powers of interpretation, the Supreme Court has held that such a prohibition does not apply to such governmental enslavement as
military conscription, jury duty, or the taxation of the proceeds of one’s labor. Without so stating, it is clear that this amendment did not
end slavery, but only
nationalized it!
But in upholding the slave-master’s “property” interest, the court has consistently shown the importance of defending the inviolability of the private property principle, right? Again, no. In the 1823 case,
Johnson v. M’Intosh#4, John Marshall wrote another opinion for the Court in which claims to substantial parcels of land, acquired through the United States government and, ultimately, back to Christian, European nations [Marshall’s criteria] were recognized as
superior to claims to the same lands
previously acquired, by the plaintiff Johnson, from Indian tribes. The ancient common law doctrine, “first in time, first in right,” was ignored in favor of claims acquired “by the sword,” by “conquest.” The logic of such thinking continues into the present, as an extension of the state’s monopolistic authority to employ violence in furtherance of ends made possible by broadly-worded powers. In the 2005
Kelo case#5, the Supreme Court decided that a local government’s forced transfer of land from one private owner to another private owner was not violative of the Fifth Amendment’s “public use” limitations on the powers of eminent domain. Kelo " like Johnson " was just another victim of the Court’s inconstant position on private property, as was Dred Scott for whom the question of his self-ownership did not enter into the discussion.
Questions as to who does and does not qualify as a “person” in the Constitution are subject to other interpretations that do not necessarily equate with being “human.” An unborn baby, for instance, has no legal sense of “personhood,” while a state-created “corporation” does. Is there any clear meaning to such definitions to which all intelligent minds can repair? Did George Orwell perform perhaps the greatest service to all who live in a world of abstractions? Should we continually remind ourselves of his lesson, by including a preamble to the Fourteenth Amendment that reads “all men are created equal, but some are more equal than others”?
Such other general language in the Constitution as “
unreasonable searches and
seizures,” “
due process of law,” “
just compensation,” “
excessive fines” and “
bail,” and “
cruel and unusual punishments,” have provided the government such a leeway in interpretation as to amount to an unbridled license. Meanwhile, language in the “Bill of Rights” that purport to be guarantees of individual liberty, have been given very narrow " and, in the case of the Ninth Amendment non-existent " meanings.
The constitutional provision that has done far more than any other to increase the powers of the federal government over American society is the “commerce clause” of Article I, Section 8. The words “To regulate Commerce . . . among the several States . . .” have been interpreted by the Supreme Court to empower Congress to control virtually any aspect of the personal, social, and economic life of Americans. Legislation to prohibit racial, religious, gender, or ethnic discrimination in employment, housing, education, or business practices can be traced to this clause. Federal control over what foods, drugs, or other items people might choose to consume, has been justified by the commerce clause. So, too, have product standards in clothing, automobiles, childrens’ toys, household appliances, been established through this provision. The examples are as endless as the appetites of the “people-pushers” who desire to extend their controls over the lives of others.
Just how far this language has permitted Congress to go can be seen in the 1942 case
Wickard v. Filburn.#6 An Ohio farmer was charged with violating federally established wheat marketing quotas by growing wheat
on his farm, to be consumed on his farm for the feeding of his family, livestock, and the seeding of next year’s crop. Only a very small portion of his wheat was sold. The farmer argued, among other points, that Congress’ powers “to regulate commerce” did not extend this far. In upholding the regulations, the court provided a clear statement about the expansive nature of government power: “That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it.” Congress, in other words, is to be the judge of how far, and to what activities, its authority extends!
By allowing the government to be the interpreter of the words that both
empower and
restrain it, we are inevitably left in a situation in which the self-interest motivations of the state give it
expanded definitions of its authority, and
narrow interpretations of restraints. If those who yearn to “get back to the Constitution” plead for a return to earlier, less extensive interpretations of empowering language, that is one thing. But let us heed the words of de Jasay, and recognize that there is nothing,
nothing, in words themselves that restrains their usage to the kinds of objective, concrete meanings we find in mathematics. As long as constitutional governments persist, we shall always be plagued by a “living constitution.” As most modern Americans seem to have embraced the concept of a unitary president, whose arbitrary decisions are not subject to oversight or reversal by other branches of government, George W. Bush, Barack Obama, and any subsequent rulers, will
be the “living constitution.”
The inherently fuzzy nature of words " a quality that always requires interpretation as to their meaning " was provided in an example of a late friend of mine, Sy Leon. Suppose that a constitutionally-based government was granted only the power “to regulate time.” He then proceeded to demonstrate how our present level of government could be rationalized through this phrase. “No one shall use their time consuming drugs;” “people shall be subject to having two years of their time spent in military conscription;” “no one shall spend their time working for less than a prescribed minimum wage;” “no one shall spend their time discriminating against others on the basis of race, religion, gender, or lifestyle;” “no one shall spend their time driving a car faster than 55 mph.”
Until men and women are able to transform their thinking regarding the principles upon which society is to operate; until the illusions upon which all political systems are based shall be exposed to even the weakest of minds, the defenders of constitutionalism will have to comfort themselves with the idea that the
Constitution is what keeps the government from doing all of the terrible things that it does! #1 Marbury v. Madison, 1 Cranch 137 (1803).
#2 Anthony de Jasay, Against Politics: On Government, Anarchy, and Order (London: Routledge, 1997), pp. 59-60.
#3 See, Dred Scott v. Sandford, 61 U.S. (19 How.) 393 (1857).
#4 Johnson v. M’Intosh, 21 U.S. (8 Wheat) 543.
#5 Kelo v. City of New London, 545 U.S. 469 (2005).
#6 Wickard v. Filburn, 317 U.S. 111 (1942).
