Isqua Istari

The Wise Wizards

Liberty and the Constitution of the United States

Posted in Articles by Ziggy Wednesday May 25, 2011 at 17:31

Introduction

I’ve been reading a lot of Frédéric Bastiat recently. He makes a very strong argument for freedom, government focus on criminal justice, and non-involvement in everything else. I want to believe him, and have been doing some thought exercises to test the idea. So far, it’s coming out alright. To see where I’m coming from here, read The Law and (if you’re up to it) Economic Harmonies.

So, I figured I’d read through the US Constitution with this in mind and find out if it matches up with this idea of liberty. As Bastiat says, “The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.” (my emphasis added) Is this the kind of “liberty and justice” the United States is founded on? Let’s find out!

(spoiler: My conclusion is that Article 1 and the 18th amendment are the main offenders. The rest are quite respectful of liberty.)

US Constitution Analysis

I’m using this version of the Constitution for analysis. As far as I know it’s accurate and complete. If it’s not (in any material way) let me know.

Preamble

I like it! To the point, clear, and concise. Other than “promote the general Welfare” we seem to be off to a good start. That phrase makes me uneasy though. It should be enough to “establish Justice” without interfering with the “general Welfare”. A minor quibble. Let’s see what the rest is like.

Article 1

Overall, I would say this section is the worst in terms of defending liberty. The Congress is given a range of powers to interfere with people in ways that they would never allow individuals to interfere. About half good, and half disturbing.

Sections 1 -7

Very good. I see nothing at all objectionable in these sections. Actually reading this section again has reminded me how very difficult it must have been to make such an easy to understand and concise constitution in the first place. I’ve also been reading Roberts Rules of Order (Newly Revised! 10th edition!) and trying to write a complicated document like the Constitution in that kind of context is daunting just to think about! I don’t know that the writers followed the rules the whole time, but there were certainly conflicting motives that contributed. Overall, well done!

Sections 8-9

Well, the positive comments are over. It was fun while it lasted, but the duties of congress has problems. First though let’s list the stuff that’s good here.

I like all of this: “The Congress shall have Power To lay and collect Taxes…” okay, I guess that makes sense. I would prefer to have a volunteer donation based government, but even Bastiat recognises taxes as a reasonable measure. “To establish an uniform Rule of Naturalization…” Fine. You need to know who is a citizen and who isn’t. “To constitute Tribunals inferior to the supreme Court.” Great! Break up the power over the justice system to suppress perversion of justice. “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations” en excellent idea. Just because a crime was somewhere else doesn’t mean it should be above the local laws. “To declare War…To raise and support Armies…To provide and maintain a Navy…To provide for calling forth the Militia…To provide for organizing, arming, and disciplining, the Militia…” Any body of Law requires an arm to enforce the Law. Military (along with police) are merely an extension of the right to self defense, and thereby in keeping with the law. “privilege of the Writ of Habeas Corpus shall not be suspended…No Bill of Attainder or ex post facto Law shall be passed.” Good, place some limits so that clearly unjust laws are prohibited before they come in force. “No capitation, or other direct, Tax shall be laid…” Cool, I guess. It was later amended, so we know how long that lasted. “No Tax or Duty shall be laid on Articles exported from any State.” Okay, that’s nice. Better would have been ‘No Tax or Duty on imports or exports either between the states or from other countries.’ since this is in keeping with “promote the general welfare”. All of that is great though; Well done.

What kills me is the rest. In my opinion, the government has no call:  ”To regulate Commerce…” What people do with their goods is their own affair. “To coin Money, regulate the Value thereof” This, too, is outside the bounds of Force, which is the purview of the Law. State enforced currency is a coerced good which everyone is forced to buy. You can’t compete with it either, since the congress is also “To provide for the Punishment of counterfeiting the Securities and current Coin of the United States”.  ”To establish Post Offices and Post Roads” Post offices are a good idea, but should not be backed by coercive force.  ”No Title of Nobility…” why not? What call do you have to interfere with other people’s names, titles, or honors? I understand that the founding fathers thought this was important enough to put in the constitution, but it seems like squabbling to me. I’d like to hear a reasonable statement as to why this idea needs to be backed with force of arms.

EDIT: A friend of mine has pointed out that the “regulate Commerce” clause is probably the worst offender of liberty in the constitution, and has been used to justify a great number laws restricting personal liberties (gun control among them).

There are a few items that seem borderline to me. “…securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” Essentially establishes the patent and copyright system. Intellectual property rights is… difficult. I’m not going to tackle this one here (I’ve since addressed IP in depth), but it makes me uncomfortable. Also the “To exercise exclusive Legislation…over…the Seat of the Government of the United States, and … for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings” clause seems a bit odd. Establishing a federal state seems more reasonable than a district not inside any state. Why should the laws be different for D.C. than for any other state? Like I said, these two seem marginal, but not really that objectionable.

Overall, about half of sections eight and nine seems well founded, and the other half support the socialist leanings of which we see the fruit today.

Section 10

Anything I object to here has already been noted in sections 8-9, so I’ll skip the griping. The states powers were obviously much greater when the constitution was written than they are today. I suspect the Civil War contributed a great deal to the authority of the Federal government. In any case it is interesting to note that States are largely prohibited from performing for themselves what the Federal government should not be performing in the first place.

Article 2

Actually, this looks really good. The president’s powers are clearly defined. If anything it seems that not enough is said about the limitations of the president. Still, no obvious injuries to liberty here. Moving on.

Article 3

Again, reasonable and short. Also again, a good deal shorter than article 1, and nothing said about limitations. Did they not foresee the courts getting out of hand? The issue of appointment is addressed elsewhere, but it is still nothing like the powers of veto and override. Still, liberty seems well treated by the Constitution’s institution of the “supreme Court”.

Article 4

Other than the “No Person held to Service…” which was amended away, this also is very clean. Hmm. I see a ‘how states join’ section, but there’s no section on ‘how states leave’. That’s always a bad sign. I would be very cautious of a “union” which was impossible to partially dissolve, if only to expel unruly members. Of course, this is with the hindsight of the Civil War. It is also odd that the legislation of the individual states is required to be the same as that of the Federal government. Why take that freedom from the states (and thereby from the people)?

Articles 5-7

All pretty benign. Amendment, Guarantee of debts, supremacy of the Constitution, oaths of office, and ratification. Speaking of amendment…

Amendment 1

The spirit of the law here is right in line with Bastiat’s statements on freedom. If anything, I wonder why the limitation was “Congress shall make no law…” as opposed to, “No law of Congress, nor of the several States…” It would have been no more imposition on the states than was already made. The way it is worded is rather unclear. Then again, I can write (and you can read) this blatant public criticism of the supreme law of the land, so it appears to have worked!

Amendment 2

Again, good idea, but this wording is even more vague. If the Ammendment was “No law of Congress, nor of the several States, shall infringe on the right of the people to keep and bear Arms.” then we would have no need for the NRA and probably half of our police force. Still, this is in keeping with liberty. It certainly doesn’t seem to detract from citizens rights.

Amendment 3

Although this is in good spirit, the clause “but in a manner to be prescribed by law.” seems rather open ended. Not that this is a real issue yet, but I’ll bet it will be.

Amendment 4

Again, a great stroke for freedom. The addition of the term “communications” and “unreasonable observation” might have spared us a bit of the imposition of wire-taps and such. Of course, it could have also caused a great deal of difficulty in fulfilling the law. Overall, well said and stated.

Amendment 5

Again, so well stated, but so barely lacking. If to the last sentence there was appended “, or for the purpose of distribution to another private person” it would have re-affirmed that the goal of government is not distribution of property, but the protection of the same. As it stands, the amendment is very useful, and has stood (for the most part, and as far as I know) respected.

Amendment 6

I find no qualm here. Of course, the term “speedy” is fairly relative, and the few friends I have known to be involved in criminal proceedings report months and years of byzantine gesticulation. I would stand behind a fiercer enforcement of the whole constitution, but the sixth amendment in particular.

Amendment 7

Interesting, I had forgotten that all civil cases (above $20. Perhaps this should be adjusted for inflation.) were eligible for trial by jury. Who pays for that, I wonder? Still, a good thought.

Amendment 8

A more strict definition of “excessive” and “cruel and unusual” is in order just at present, but any words can be twisted. All amendments should aspire to be as just, short, and intense as the eighth.

Amendment 9

This one appears, to me at least, to have a great hidden power. In itself, it carries the seed of all liberty. I have never heard anyone “plea the ninth”, but it should be more common. I heartily approve.

Amendment 10

Along with the ninth, the tenth amendment appears to be largely overlooked. Much of the government interference with commerce and personal liberty could be reasonably staved off by an appeal to the tenth amendment.

Amendment 11

This has to do with the power of the supreme court. I’m not sure how it pertains to liberty, so I’m going to let it pass without comment.

Amendment 12

How to elect a government? Make the guy in first place president, and the second place vice-president. Good idea? Apparently not. Also a pass on the liberty question as far as I am concerned.

Amendment 13

Slavery is directly in opposition to liberty, so this amendment passes the liberty test with flying colors. I also notice that slavery is still allowed as a punishment for crimes. We should bring that  into practice! Sell convicts to private owners instead of sending them to rot in jail. Perfectly constitutional. Everybody wins!

Amendment 14

Along with the 20th and the 25th, this is among the longest amendments. In essence it deals with the aftermath of the Civil War. A war which (as mentioned above under Article 4) may have been avoidable with an escape clause for states. Liberty again is neutral with this one.

EDIT: A friend of mine pointed out that the 14th amendment, far from being neutral, is a great blow struck for liberty. Especially the first clause, which not only places a burden of “due process” on the states, but also requires that individual states respect the constitution. Re-reading it, I can see what he means. My bad. Amendment 14 (especially article 1) is clearly a defense of liberty.

Amendment 15 (plus 17, 19, 24, and 26)

This seems like a blow struck for liberty, but I’m not so sure. To quote piecemeal from Bastiat, “Universal suffrage means, then, universal suffrage for those who are capable. But there remains this question of fact: Who is capable? Are minors, females, insane persons, and persons who have committed certain major crimes the only ones to be determined incapable?…And why is incapacity a motive for exclusion? Because … the people in the community have a right to demand some safeguards concerning the acts upon which their welfare and existence depend… I wish merely to observe here that this controversy over universal suffrage (as well as most other political questions) which agitates, excites, and overthrows nations, would lose nearly all of its importance if the law had always been what it ought to be. In fact, if law were restricted to protecting all persons, all liberties, and all properties; if law were nothing more than the organized combination of the individual’s right to self defense; if law were the obstacle, the check, the punisher of all oppression and plunder — is it likely that we citizens would then argue much about the extent of the franchise?” Thus, the fifteenth amendment, and the nineteenth, and the twenty-sixth are not that significant from the standpoint of liberty. They are not that bad either; They are merely neutral.

Amendment 16

Ouch, a sore topic. I’d like to see the income tax abolished, but it is in keeping with the government’s functions to levy taxes. Again, neutral on liberty.

Amendment 17

See my notes on Amendment 15. Expansion of elections does not guarantee liberty. Neutral.

Amendment 18

This is the single amendment most offensive to liberty in the whole of our constitution. A private citizen is never allowed to coerce another citizen except in defense of his own live, liberty, or property. If I were to go about shooting homosexuals I would be rightly arrested. The eighteenth amendment does no less, and is an affront to liberty. The fact that it was popularly voted into law, and stood so long, is strong evidence that the United States is not – in fact or practice – the “land of the free”.

Amendment 19

See notes on Amendment 15. Neutral.

Amendment 20

Technical stuff about the balance of power in the government. Neutral.

Amendment 21

The eighteenth amendment repealed, finally. Maybe there’s some hope for freedom after all.

Amendment 22

More internal government politics. Neutral.

Amendment 23

If the federal district was a state just like other states (As I noted under Article 1, Sections 8-9)we could have avoided this whole amendment entirely. (Geek note: As a computer programmer, the creation of a special “class” for the federal district offends my sense of elegance. Creating another state for the federal district with its own state government answerable to Congress seems a much more elegant solution.) Why they did it this way? The federal government was probably not ever envisioned as being as large as it is today, nor the District of Columbia as populace as it has become. Either way, it appears to have little to do with liberty.

 

Amendment 24

See my notes (or rather, those of Bastiat) on Amendment 15 as to why this is not a real issue of Liberty. Neutral.

Amendment 25

Another amendment neutral on libertarianism. Lots of words about the president and his powers. If only the constitution talked a bit more about what exactly he is supposed to be doing.

Amendment 26

See notes on Amendment 15. Neutral.

Amendment 27

We end (for now) with another neutral amendment.

Well, That Took a While Didn’t It?

The point being, it appears that the US Congress was given powers over a great many things that the government should not be meddling in if Bastiat is to be believed. Other than that, the foundations of the US government seem to be well placed. A number of the amendments in the Bill of Rights could have been worded better. The great number of amendments (five out of twenty-seven) devoted exclusively to expanding suffrage is testimony that the government has overstepped its bounds, and stayed over them, long enough that everyone wants a cut of the plunder.

Honestly, I was expecting either more or less fundamental animosity towards liberty. Really though freedom can not flourish where men seek slavery. Bastiat states the positive case well, to quote the Introduction by Dean Russell to Economic Harmonies “Bastiat’s interest in free trade, however, was still incidental to his passion for freedom in general. As he wrote in one of his numerous letters to Cobden, “Rather than the fact of free trade alone, I desire for my country the general philosophy of free trade. While free trade itself will bring more wealth to us, the acceptance of the general philosophy that underlies free trade will inspire all needed reforms.”” To offer another more ancient example, the Hebrews (when they had personal liberty) begged for governmental oversight (as God had predicted) even in the face of the enormous cost. It should be evident that, though laws may promise liberty, God permits “we, the people” to pull down on ourselves the burden of government. I maintain that the government has only oppressed us to the degree that the people of the nation, as a whole, desire it. If you don’t like it, go someplace else.

(The question as to whether there is anyplace “better” to go is one which I would very much like to hear answered in the affirmative, as well as the details thereof.)


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