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, â€œOur constitution is dead.â€ 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: â€œto secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.â€ Therefore, if oneâ€™s 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: â€œWe 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.â€ 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 thisâ€“even Americaâ€™s 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 â€œbe disinclined to invade the rights of the individual States, or the prerogatives of their governments.â€ James Madison, Federalist Paper (FP) 46. These principles determine the constitutionâ€™s 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: â€œBy a constitution we mean the principles on which a government is formed and conducted.â€ 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) â€œLet the nature and objects of our Union be considered; let the great fundamental principles on which the fabric stands be examined.â€ Cohens v. Virginia, 19 U.S. 264, 423 (1821). (2) â€œ[N]o free government, or the blessings of liberty, can be preserved to any people butâ€¦by a frequent recurrence to fundamental principles.â€ Benjamin Kidd, Principles of Western Civilisation, citing Virginia Declaration of Rights, June 12, 1776, (London, The Macmillan Co., 1902), 511. (3) â€œOnce the principles of government are corrupted, the very best laws become bad and turn against the [people of the] state.â€ Charles de Baron Montesquieu and Julian Hawthorne, ed., The Spirit of Laws: The Worldâ€™s 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 â€œthe consent of the government,â€ 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 â€œlight and transient causes,â€ but in cases where a â€œlong train of abusesâ€ 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:
â€œ[I]f the king act, with a really hostile mind, with a new to the destruction of the whole peopleâ€¦that the kingdom is forfeited; for the purpose of governing and the purpose of destroying cannot subsist together.â€ Hugo Grotius and William Whewell, trans., Hugo Grotius on the Rights of War and Peace, Book II, (Cambridge: University Press, 1853), 57â€“58.
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 â€œto alter or to abolishâ€ that constitution before the peopleâ€™s lack of resistance is deemed to be â€œthe consent of the governed.â€ (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. â€œ[T]o conquer [the existing constitutionâ€™s] will, so as to rest the right on that, the only legitimate basis, requires long acquiescence and cessation of all opposition.â€)
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). â€œThe State governments, by their original constitutions, are invested with complete sovereignty.â€ Alexander Hamilton, FP 31. And, â€œEach 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.â€ 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 â€œthe 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.â€ 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 â€œexperimentâ€ 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 â€œafford complete security against invasions of the public liberty by the national authority.â€ 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 â€œconstitutionallyâ€ uphold those unconstitutional acts by its rulings, which are supposedly made impartially â€œaccording to the rules of the Constitutionâ€ (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 (â€œCongress shall make no lawâ€¦â€), 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 â€œfederal supremacyâ€ in un-enumerated powers over the states, contrary to the principles of the constitution? How can the constitutionâ€™s 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 wi