by Timothy Baldwin
After my latest article, Our Dead Constitution, was released, I received much response, many from those who understood and agreed, and some by those who were opposed to my statement, รขโฌลOur constitution is dead.รขโฌย This leads me to reasonably believe that many of us need to be educated about what a constitution actually is before constitutional law and freedom can be restored throughout the states.
1. A constitution does not create freedom. A constitution is created only to protect and secure freedom which already exists, through forms, structure and limitations of government. This is what our founders said in the Declaration of Independence: รขโฌลto secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.รขโฌย Therefore, if oneรขโฌโขs perspective about the U.S. Constitution is that it statically creates freedom for all the people of the states, then I could understand how he would be shocked or angered at the suggestion that the U.S. Constitution is dead. To the contrary, we know that freedom exists in a state of nature, created by God, as expressed in the Declaration of Independence: รขโฌลWe hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.รขโฌย These natural laws and rights never die. They existed prior to 1787 and they will exist after we are gone. Thus, a distinction must be made between natural freedom (which never dies) and a constitution (which can die).
2. A constitution may be worthless to secure freedom. History proves thisรขโฌโeven Americaรขโฌโขs history. A constitution rests upon a serious distrust of human nature, and simultaneously upon the skeptical and temporary trust placed in delegated power, which supposedly will รขโฌลbe disinclined to invade the rights of the individual States, or the prerogatives of their governments.รขโฌย James Madison, Federalist Paper (FP) 46. These principles determine the constitutionรขโฌโขs nature, character, form, and function. This necessarily means that a constitution itself is to be contrasted to the eternal principles that formed the constitution, and where government does not conform its actions and intentions to the principles of the constitution, the constitution itself is practically meaningless and dead. American jurist, William Rawle, expresses the same: รขโฌลBy a constitution we mean the principles on which a government is formed and conducted.รขโฌย William Rawle, A View of the Constitution of the United States of America, 2.
That our government must conform its actions and intentions to these principles is confirmed by the United States Supreme Court, by those who formed our constitutions, and by those who helped form the very fundamental thoughts of American jurisprudence: (1) รขโฌลLet the nature and objects of our Union be considered; let the great fundamental principles on which the fabric stands be examined.รขโฌย Cohens v. Virginia, 19 U.S. 264, 423 (1821). (2) รขโฌล[N]o free government, or the blessings of liberty, can be preserved to any people butรขโฌยฆby a frequent recurrence to fundamental principles.รขโฌย Benjamin Kidd, Principles of Western Civilisation, citing Virginia Declaration of Rights, June 12, 1776, (London, The Macmillan Co., 1902), 511. (3) รขโฌลOnce the principles of government are corrupted, the very best laws become bad and turn against the [people of the] state.รขโฌย Charles de Baron Montesquieu and Julian Hawthorne, ed., The Spirit of Laws: The Worldรขโฌโขs Great Classics, vol. 1 (London: The London Press), 116.
Thus, a maxim must be admitted: where the principles of freedom are abandoned, the constitution no longer serves its constituted purpose; that is, to limit the government as the consent of the governed demanded at its creation. And once the constituted purposes and principles are abandoned, how could it be argued that the constitution has life? Is the form (the constitution) greater than the substance (the principles)? Certainly not.
3. When a government breaches its limitations placed upon it by a constitution, (a) the government agent loses its trust to rule, (b) the powers delegated to it are reverted back to the creators of the constitution, and (c) the constitution becomes non-binding on those who created it. This is the natural law concept of รขโฌลthe consent of the government,รขโฌย as expressed in our Declaration of Independence. It is further a concept regarding the rights of the parties who enter into a compact. As noted by our founders, we do not normally exercise this natural and compact right over รขโฌลlight and transient causes,รขโฌย but in cases where a รขโฌลlong train of abusesรขโฌย are evident. European forefather, Hugo Grotius, recognizes that when a government contradicts the principles that created its power, that creation (i.e. kingdom/constitution) dies and the people have the right to institute new government:
รขโฌล[I]f the king act, with a really hostile mind, with a new to the destruction of the whole peopleรขโฌยฆthat the kingdom is forfeited; for the purpose of governing and the purpose of destroying cannot subsist together.รขโฌย Hugo Grotius and William Whewell, trans., Hugo Grotius on the Rights of War and Peace, Book II, (Cambridge: University Press, 1853), 57รขโฌโ58.
A constitution that has been continually breached by the government is no longer a constitution at all, because the very purpose of a constitution is to limit the government by the will of the people who created it. Thus, a people who continually live under an abandoned constitution do not live under a constitution at all; but rather, they live in voluntary slavery, and the constitution is dead to those people and that government. It is literally time รขโฌลto alter or to abolishรขโฌย that constitution before the peopleรขโฌโขs lack of resistance is deemed to be รขโฌลthe consent of the governed.รขโฌย (See, Thomas Jefferson and John P. Foley, ed., The Jeffersonian Cyclopedia, A Comprehensive Collection of the Views of Thomas Jefferson, (New York and London: Funk & Wagnalls Co., 1900), 185. รขโฌล[T]o conquer [the existing constitutionรขโฌโขs] will, so as to rest the right on that, the only legitimate basis, requires long acquiescence and cessation of all opposition.รขโฌย)
4. Particular to the United States, the U.S. Constitution was voluntarily formed as a compact by existing sovereign states with existing state constitutions. See FP 39. Despite the deceptive proposition that the States were created by Congress, the States existed prior to and independent of any Congress, as confirmed by the Treaty of Paris in 1783 (which, by the way, was not overturned by any subsequent legal action of the states). รขโฌลThe State governments, by their original constitutions, are invested with complete sovereignty.รขโฌย Alexander Hamilton, FP 31. And, รขโฌลEach State, in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.รขโฌย James Madison, FP 39.
Today, there is a fraudulent notion in America which places the U.S. Constitution above the importance and relevance of the state constitutions and state sovereignty, despite the fact that we were told (in efforts to get us to ratify the U.S. Constitution) that รขโฌลthe State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.รขโฌย Alexander Hamilton, FP 32. The authoritative advocates of the U.S. Constitution confirm that even with the U.S. Constitution ratified or with the U.S. Constitution dissolved, the states would have their own constitutions to protect freedom and secure the blessings of liberty within that state.
It was even proposed during the 1780s that instead of one confederacy being created through the ratification of the U.S. Constitution, several confederacies be ratified instead. See FP 2. So, it cannot be accurately stated that the U.S. Constitution was the sole form of convenience of the states. The U.S. Constitution was in fact an รขโฌลexperimentรขโฌย of union, which admittedly may not work. James Madison, FP 14. Many notable American patriots, of course, (prophetically and correctly) believed the U.S. Constitution would in time, by constitutional construction, become destructive to the natural rights and sovereignty of the people of the states. Even pro-U.S. Constitution advocates warned us of the tyrannical tendency of central governments and implored the State governments to รขโฌลafford complete security against invasions of the public liberty by the national authority.รขโฌย Alexander Hamilton, FP 28.
Therefore, it must be acknowledged that the U.S. Constitution no more creates freedom than any other government creates freedom; and that the U.S. Constitution was simply a union of states for very limited purposes, all of which were and can be handled by the states themselves without the existence of the U.S. Constitution or federal government.
5. Constitutions can be destructive to freedom where the document itself is used against the people. Montesquieu expounded upon this, as I cited in, Our Dead Constitution. If you disagree, pray tell, how is it that Congress can regulate virtually anything it desires under the Commerce Clause of the constitution? How can the United States Supreme Court รขโฌลconstitutionallyรขโฌย uphold those unconstitutional acts by its rulings, which are supposedly made impartially รขโฌลaccording to the rules of the Constitutionรขโฌย (FP 39)? How can the bill of rights be used against the retained powers and sovereignty of the states, when the U.S. Constitution was never intended to limit the states whatsoever? How can a federation be turned into a nation without the consent of the people? How can the first amendment, designed to restrict the federal government in all regards (รขโฌลCongress shall make no lawรขโฌยฆรขโฌย), be used to not only make law through the federal courts but also restrict individuals and states from exercising their natural rights within their own jurisdictions?
How can the constitutional limitations of the federal courts to apply the Supreme Law of the Land be used to justify รขโฌลfederal supremacyรขโฌย in un-enumerated powers over the states, contrary to the principles of the constitution? How can the constitutionรขโฌโขs general welfare clause be a legal justification to the federal government socializing healthcare, economics, banks, manufacturing, and education, despite the clear intention of the ratifiers to the contrary? How can Congress create a fiat money system without any constitutional power whatsoever to do so? How can the President engage in an eight year war with no declaration from Congress? How can Obama supposedly not be eligible to be President while absolutely no one in the federal system cares? You call that a constitution alive and well!? I could go on and on, as many authors have already well documented for generations now. The long train of abuses is clear: the constitution has been and is being used every day against the freedoms and rights it is supposed to protect and against the principles and trust that created it.
6. Constitutions can be dissolved by those who created it. Our Declaration of Independence confirms this natural right, which is inherent in all sovereigns. The U.S. Constitution was ratified by the voluntary assent of the sovereigns of the states, in their capacity as states. FP 39. The states created the U.S. Constitution not to create freedom, not to create powers they did not already possess individually, and not to create union for unionรขโฌโขs sake. They created it for certain benefits that union provided (at that time). If this union were ever destructive to these ends, the states would most certainly have the right to dissolve their part of the union to preserve freedom for that state. (James Madison, FP 39, รขโฌลdissolution of the compactรขโฌย; Alexander Hamilton, FP 28, รขโฌลoriginal right of self-defense which is paramount to all positive forms of governmentรขโฌย; Alexander Hamilton, FP 26, รขโฌลpeople should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many states as there are counties, in order that they may be able to manage their own concerns in person.รขโฌย)
Thus, a political maxim must be admitted: union, through the U.S. Constitution, does not equal freedom and can actually be destructive to freedom. Given the natural laws of sovereignty, self-defense, self-preservation and self-government, the States may in fact be better off not to be a part of a union that is causing their demise. More pointedly put, the States may in fact be better off to declare the compact (the U.S. Constitution) or at least, the federal laws creating their demise, null and void within their sovereign borders. Naturally, this sovereign power can come in different forms, through nullification, active resistance to federal usurpations, controlling the mechanisms used against the states, and secession.
Regardless of your agreement with these truths, the information provided is all based upon the natural law and political discussions of those who formed the foundation of our Republic. The fact that we do not understand them only causes tyranny to tighten its grip on us. Before freedom will ever be restored, government will be limited, and the people will govern themselves, the sovereigns of the states must recognize that the U.S. Constitution is not the answer to our political and societal plight. Rather, it is the principles of freedom that provide the answer. The time has come in America when to restore constitutional law and freedom in the STATES, the people of the states must begin looking internally to their own powers, sovereignty, self-defense, self-preservation, self-reliance and constitutions.
Tim Baldwin is an attorney who received his Juris Doctor degree from Cumberland School of Law at Samford University in Birmingham, Alabama. He is a former felony prosecutor for the Florida State Attorneyรขโฌโขs Office and now owns his own private law practice. He is author of a soon-to-be-published new book, entitled FREEDOM FOR A CHANGE. Tim is also one of Americaรขโฌโขs foremost defenders of State sovereignty. See his website.
Copyright (c) Timothy Baldwin, 2009.