by Steve Palmer, Pennsylvania Tenth Amendment Center
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the generalÂ Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
we find this list of goals:
- form a more perfect Union,
- establish Justice,
- Insure domestic Tranquility,
- provide for the common defence,
- promote the general Welfare,
- and secure the Blessings of Liberty to ourselves and our Posterity
This essay, will look at the final goal.Â How does the Constitution “secure the Blessings of Liberty” to anyone?
Default Deny or Default Allow
There are two concepts from security that are especially relevant to understanding the Constitution.Â These are, the white list and the black list.Â The white list, or default deny, precludes everything except for a list of allowed objects.Â The black list, or default allow, permits everything except for a list of disallowed objects.Â According to Wikipedia,
A whitelist or approved list is a list or register of entities that, for one reason or another, are being provided a particular privilege, service, mobility, access or recognition. As a verb, to whitelist can mean to authorize access or grant membership. Conversely, a blacklist is a list or compilation that identifies entities that are denied, unrecognised, or ostracised.
Renowned security expert, Bruce Schneier writes,
The whitelist/blacklist debate is far older than computers, and it’s instructive to recall what works where.Â Physical security works generally on a whitelist model: if you have a key, you can open the door; if you know the combination, you can open the lock.Â We do it this way not because it’s easier — although it is generally much easier to make a list of people who should be allowed through your office door than a list of people who shouldn’t–but because it’s a security system that can be implemented automatically, without people.
To find blacklists in the real world, you have to start looking at environments where almost everyone is allowed.Â Casinos are a good example: everyone can come in and gamble except those few specifically listed in the casino’s black book or the more general Griffin book (make sure to check out s128 game) .Â Some retail stores have the same model — a Google search on “banned from Wal-Mart” results in 1.5 million hits, including Megan Fox — although you have to wonder about enforcement.Â Does Wal-Mart have the same sort of security manpower as casinos?
Note, especially, two of Schneier’s remarks.Â First, “To find blacklists in the real world, you have to start looking at environments where almost everyone is allowed.” and second, “you have to wonder about enforcement“.
Securing access with a white list is relatively easy.Â Everyone is kept out except for those few people who can prove that they’re entitled to enter.Â In a white list, the people to be allowed entry are few and defined.Â The list of people to be kept out is numerous and indefinite.
As Schneier notes, securing access with a black list is much harder and more expensive.Â The people to be allowed in are numerous and indefinite, while the list of people to be denied are few and defined.Â Often, the blocked person is not identified until after they have already obtained access.
Black Lists and White Lists in the Constitution
As noted, one goal of the Constitution was to “secure the Blessings of Liberty to ourselves and our Posterity”.Â To this end, the framers used a mix of white lists and black lists.
Article I, Section 8 of the Constitution provides a list of powers which the Congress is allowed to perform.Â By allowing congress to perform these powers, a white list is implied.Â If we analogize to the physical world, the people have used the Constitution to build a wall to protect these powers.Â The people and the States are outside the wall with all of the secured powers.Â The Congress has been given a key to be able to access these powers (and only these powers).
Article I, Section 10 of the Constitution provides a list of powers which are denied to the States.Â The nature of this list implies that it is a black list.Â As Schneier said, “you have to start looking at environments where almost everyone is allowed” — in this case, it’s an environment where almost everything is allowed.
Looking at these two sections in conjunction, we see that Madison was correct, when he wrote in Federalist #45,
The powers delegated by the proposed Constitution to the federal government, are few and defined.Â Those which are to remain in the State governments are numerous and indefinite.
Article I, Section 8 delegates a white list of few and defined powers to the federal government.Â Article I, Section 10 uses a black list to declare that the powers which remain to the states are numerous and indefinite.
But wait… There’s more!
At this point, we have a logically complete description, but many of the people at the time of the ratification conventions were unsatisfied by the implicit nature of the protections, and demanded a “Bill of Rights”.Â If seen by themselves, Amendments 1 through 8 would imply a black list.Â A list of things which the government may not do is established.Â If the government is not allowed to infringe these powers, it might be assumed that others, not listed, could be infringed.Â However, Amendment IX prevents that erroneous inference.
Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Even if a right isn’t explicitly protected by the Bill of Rights, it still cannot be infringed without an explicit authorization elsewhere in the Constitution.Â Conservative commentators often get this one wrong when they rail about the Supreme court “discovering” Constitutional rights.Â There are, of course, no Constitutional rights.Â The Constitution was intended to protect the People’s Natural rights.Â The Ninth Amendment tells us that a right does not need to be explicitly itemized in the Constitution in order to be protected.
Similarly, the tenth amendment reaches all the way back to Article I, Section 8 and changes the implicit definition of that white list to an explicit one.
Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
This clearly spells out the “default deny” nature of the powers of Congress.Â This creates a wall which can only be opened if the federal government uses the keys provided by its enumerated powers.
The Pernicious Nature of Case Law and The Living Constitution
If a stated goal of the Constitution is to Secure the Blessings of Liberty, against whom are those blessings being secured?Â It should be obvious, I hope, that one intent of the Constitution was to protect our Liberties from our Government.Â The claim that the federal government must reinterpret the Constitution to fit the times, then, works exactly in opposition to the goal of securing the Blessings of Liberty.
For example, when the Constitution was ratified, “Interstate Commerce” in Article I, Section 8, meant interstate commerce.Â Case law and the living constitution have effectively changed the meaning of “interstate commerce” to “anything the Supreme Court doesn’t reject” (or “anything we damned well please”).Â If a farmer growing wheat in his own field to feed his own livestock is engaged in Interstate Commerce, then anyone is.
In fact, what the Living Constitution has done was to replace the white list found in Article I, Section 8 of the Constitution with a black list whose rare restrictions are recorded in case law, not in the Constitution, itself.Â Worse than simply changing the meaning of some of the words, the “Living Constitution” has been used to fundamentally transform the nature of the protections afforded by the Constitution!
If we want to Secure our Liberties, we must get back to the meaning of the Original Constitution.Â Article I, Section 8 of the Constitution was intended as a white list which would secure our liberties.Â The federal government wants us to start seeing it as a black list, where “almost everything is allowed”.Â If we are going to protect the Liberty we have left and reclaim Liberty that has been lost, the States and the People must refuse to tolerate this surreptitious and fundamental restructuring of the Constitution.