Freedom is Unconstitutional
This essay was written by Daniel Hawkins.
The Constitution is one of the most controversial documents in all of human history. Scorned by some and worshiped by others, the Constitution is something worth a very close look. Modern Constitutionalists believe that the US government has strayed far away from the intent of the Founders, and as a result we have come under the thumb of tyranny. They argue that if we only got back to the Constitution and to the Bill of Rights we would all be better off, limited government would be restored, and freedom and prosperity would return to America.
This article will debunk the most common myths held by Constitutionalists. Ultimately, I will prove that it is not a document of freedom and that the Constitution actually makes real freedom impossible.
Myth 1: The Articles of Confederation were weak
Before the U.S. Constitution was adopted, the Articles of Confederation had been agreed upon and existed as the first constitution. The United States of America, contrary to popular opinion, has not been around since the beginning of time. Before the Union, there was the Confederation.
For those unaware, the Confederation was a loose union of the 13 free states during and after the Revolutionary War. These states pledged their mutual support to each other in order to ensure their survival and prosperity. The Articles were the documents that enshrined this alliance of 13 sovereign nations. Though scholars generally criticize them, I’d actually wager that if today’s Constitutionalists had been around at the time, they would favor the Articles over the Constitution.
If you’re a Constitutionalist, you probably resonate with phrases like “states’ rights” or “decentralization.” You couldn’t get any better under the Articles: each sovereign state had to approve the Articles in their legislature before the Articles became law. The central government under the Articles was extremely weak, as there was only one branch—the Congress of the Confederation. In the Congress, each state sent delegates to hash out laws and pacts for each state to follow, although there was no national police authority to enforce these laws. Each state was responsible for enforcement itself, so if one state wasn’t satisfied, it could essentially nullify a Congressional decree.
Are you wary of the IRS and high taxes? The Confederation wasn’t even given the authority to tax. Taxes were collected by each state and a small amount was apportioned to go the Congress. Don’t like career politicians? Unlike the Constitution, the Articles had strict term limits built into them. Don’t want the FBI, DHS, or any other militarized body declaring martial law or meddling in foreign affairs? The military under the Articles was very weak, yet proved successful against the military of Great Britain. If you are looking for a model government with more responsibility given to the states and the people that sets extremely strict limits on the federal government, look no further than the Articles of Confederation.
Myth 2: The Founders Wanted a Federal Government
There is a smaller myth contained in this one regarding The Founders. There was no group of people who were the “founders” or the “founding fathers” or the “framers” of this nation. The “Founders” did not exist. The veterans of the Revolutionary War and the brave citizens of each state should be just as respected as the politicians of the time. It’s important to understand that these politicians came from various backgrounds and had varying ideologies. They were never of one mind and many of them downright hated each other.
To see why some people wanted a federal government we have to look at the deficiencies within the Articles of Confederation and the issues that followed. One of the main problems with the Articles was that each state pledged its finances to the others in terms of satisfying war debt from not only the Revolution, but the French and Indian War. When some states could not pay, it put major pressure on the Congress—which printed fiat money while respecting the independent currencies of each state—to monetize its own debt. The Congress was also pressured to fill its coffers, yet was unable to raise taxes, so the responsibility was passed down to each state. Instead of questioning the necessity of the Congress itself, the states cracked down on its own people. Massachusetts was essentially a powder keg at the time–still filled with passionate freedom-fighters and Revolutionary War veterans—and then-governor John Hancock, who was a big fan of minimal government, refused to crack down on tax delinquents. Eventually the tax collectors and citizens clashed, spawning Shays’ Rebellion. It seemed that the new alliance was on the brink of destruction with the European empires knocking at the door.
The people of the Confederation and the politicians were of two minds at that point. Many people began to see a power vacuum that the Crown once filled and the absence of a strong central government (an organized military, a central bank, national courts and police) begot the chaos happening among the states. For example, state governors were in the practice of granting monopoly privileges to ferry operators on the rivers in their states. As these ferries grew and crossed state lines, and as competitors challenged these monopolies outright, fights developed between the operators and the states. (See The First Tycoon: The Epic Story of Cornelius Vanderbilt. Also see Supreme Court case Gibbons vs. Ogden.) While the obvious solution was to abolish state granted monopolies and let customers decide which ferries would succeed, Alexander Hamilton, James Madison and others pointed to events like this as reasons that a large national government was urgently necessary. Others, though, saw it as the growing pains of young states. This side saw it as more of the fault of the Congress for drafting unwise rules and debasing its own currency, and conceded that perhaps some amendments were in order.
In September 1786 Alexander Hamilton organized the Annapolis Convention. A total of 12 delegates representing only 5 of the newly independent states attended. It seemed that the vast majority of the population, and even the State governments themselves, were content with the Articles. Hamilton mentioned the need for a stronger central government, and his allies, dubbed the Nationalists at the time, agreed to convene again at the Philadelphia Convention.
Myth 3: The Constitutional Convention
Again, we have a myth inside a myth. The first myth is that there was such a thing as the “Constitutional Convention.” The purpose of the Philadelphia convention was to amend the Articles of Confederation. Of course we know that the end product was a Constitution, a Union, and a federal government to rule it. Many libertarians today, and many politicians at the time, saw it as illegal that their delegates drafted a completely new governing document when they had only been sent there to amend the existing one. The Philadelphia Convention was not called the Constitutional Convention at the time and in hindsight it is clear that there was certainly an ulterior motive present.
From the outset, the convention was cloaked under such shroud of secrecy as history has rarely seen before or since. The delegates swore an oath of secrecy and the proceedings could not be published. To this day, “We the People” have very little documentation of what actually went on in the meetings where the document beginning with that famous phrase was drafted. One of the few primary sources we do have is James Madison’s diary. Often called the “Father of the Constitution,” Madison was a Nationalist. He, Hamilton, Washington, and a few other attendees agreed that the Articles should be done away with even if it was illegal, even if only a few of the States were in attendance. After the Annapolis Convention, the people who supported the Articles (essentially anti-Nationalists) became even more spooked. Patrick Henry—a figure loved and respected by today’s Constitutionalists—was invited to the convention, but declined, saying, “I smelt a rat in Philadelphia tending toward the monarchy.” His fears turned out to be substantiated.
Another primary source on the convention, which was published before Madison’s notes by Robert Yates and Luther Martin is aptly titled Secret Proceedings and Debates of the Convention. These notes and speeches paint a very different picture than what Madison would have us believe. Martin was so enraged at his fellow delegates’ affinity with the federal government and the new constitution that he stormed out of the convention. Nearly all historians have conveniently forgotten to tell us that the delegates at the convention debated not only issues like representation and regulation of commerce- but also whether or not this national government should be created at all.
After the convention, their was time for each state to debate the new Constitution before it was to be ratified. The delegates went home to argue their points, and those who refused attendance argued theirs. These two factions were called the Federalists and the Anti-Federalists. The Federalists were made up of such minds as Hamilton, Madison, John Jay, George Washington, and John Adams, each with their own ideas on the degrees of authority the new United States central government should have. The Anti-Federalists, boasting names like Samuel Adams, George Mason, and Patrick Henry (in addition to Yates and Martin), were very much in favor a minimal government. It was abundantly clear, though, that the Federalists were much better mobilized. They were more privileged, more connected, and more powerful, and they had everything to gain from the dissolution of the Confederation and the formation of a Union. They hadn’t fought a war just to let the people raise their crops, take care of their children and brew whiskey- they wanted glory, they wanted a position on the world stage. We know, in the end, that the Anti-Federalists lost the battle of the Constitution, but they were not silenced yet.
Myth 4: The Golden Era and the Bill of Rights
These may look like two separate myths, but one is dependent upon the other. Constitutionalists often look back with nostalgia at the first few decades after the Constitution was ratified thinking that everything was just fine. There are different ideas on where and when the US “went wrong” along the way, but the consensus seems to be that the first few decades after ratification were successful in terms of restraining government. “If we could just get back to the Constitution!”, they say, things would be fine.
There are a few problems with this. First, we have to discuss the Bill of Rights. Maybe most people just didn’t pay attention in school (I know I didn’t), but we should understand that the Bill of Rights is a collection of amendments to the Constitution. The Bill of Rights is not, in any way, part of the Constitution. An amendment does imply a sort of addendum, a sort of patch to cover a hole, but it’s the origin of the Bill of Rights that should pique your interest. The Bill of Rights was never intended to help the Constitution, but to hurt it.
The delegates at Philadelphia refused to add a Bill of Rights modeled after the English Bill of Rights and/or the Virginia Declaration of Rights. The opposition to the Bill was made up of mostly Federalists (with a few Anti-Federalists); their main argument was that a Bill of Rights would be too specific and would imply that rights not specifically listed were absent. The proponents of the Bill of Rights were mostly Anti-Federalists, but there were some Constitutionalist supporters like Thomas Jefferson and James Madison (who would later leave the Federalist Party). They argued that the other documents on which the Bill of Rights would be based worked fine for the colonists and Englishmen before them in fending off the encroachments of the Crown. The Constitution, in their eyes, was only a list of powers given to the government. Language asserting the inalienable freedoms of the people of the Union was decidedly absent. They had lost the fight in preserving the Confederation, but they were intent on gaining some ground. Eventually, they tacked the Bill of Rights to the ratification deal, forcing the Federalists to compromise, but that didn’t fix everything.
The deficiencies of the Constitution, with or without the Bill of Rights, plagued the founding era. The states still pledged their war debt to each other. After ratification, Alexander Hamilton was appointed Secretary of the Treasury. He was determined to ease the debt. This might sound like a good thing to Constitutionalists, especially given today’s situation, but his solution was a bad one.
First, he created the First Central Bank of the United States. Though it was lacking some of the teeth, it was undoubtedly the precursor to the Federal Reserve, printing fiat money and monetizing its own debt at the behest of elite bankers. Meanwhile, Hamilton cracked down on taxes. The Continental Currency was so weak that people began to abandon it. In addition to the sanctioning of slavery and granting only males the power to vote, the Constitution had further enshrined liberty by prohibiting all 13 States from issuing their own currency. The hardy, freedom loving citizens of early America didn’t give up.
Pennsylvanian farmers, as well as other farmers around the Appalachians, began using the byproducts of their crops—whiskey, etc.—as currency. As a result, the feds couldn’t tax or regulate it. They didn’t like it one bit.
Hamilton urged president Washington to send emissaries to deal with these proto-Agorists. The protestors did not vote on whether or not Pennsylvania currency could be abolished, and the alcohol tax was not voted in their area. In their minds, this was encroachment worthy of the Crown. What ensued was disarray and sedition that would eventually be called the Whiskey Rebellion. The rebels, echoing Shays’ Rebellion and the French Revolution, refused to give up their goods. The Anti-Federalists supported the Whiskey Rebellion, and when the rebels were crushed, their credibility was further damaged. George Washington protected our freedoms by marching an army of 13,000 men all the way to western Pennsylvania to crush the rebellion. Alexander Hamilton wanted the participants to be hanged but Washington would not do it.
The affronts to freedom didn’t stop there. When Federalist politician John Adams won the presidency, things were heating up. Relations with the English (whom the Federalists supported) and the French (whom the Anti-Federalists supported) were tense. The Federalists saw the Whiskey Rebellion as a dangerous threat to the survival of the Union and paranoia and propaganda spread like wildfire. Before long, the Alien and Sedition Acts were passed. Aimed mostly at Anti-Federalist, these acts were passed in the name of national security. Newspapers critical of the government were shut down, and foreign politicians, as well as those sympathetic to the French, such as Jefferson, were threatened with deportation and imprisonment. It wasn’t until the presidency of Thomas Jefferson that the acts were repealed.
The Federalist policies in early America were strict and authoritarian, but the power of these measures was not limited to the founding era. Their legacies lived on in the form of precedent. Hamilton’s Central Bank bears an eery resemblance to the current Federal Reserve. The crushing of the Whiskey Rebellion and closing of newspapers were no more an affront to liberty back then as a militarized IRS, martial law and federal supremacy over states in matters of taxes are today. The Alien and Sedition Acts set the precedent for the Espionage Act, the Enemy Aliens Act, the Patriot Act, and the NDAA.
Myth 5: The Constitution Makes the US a Republic Instead of an Empire
Early on in American history, something was established that we call “federal supremacy.” Federal supremacy is basically the idea that when state law and federal law conflict, federal law wins out. it is a sticky topic, especially when it comes to Constitutional wording and the intent of the founders. Immediately after it began functioning, the Supreme Court ruled in favor of federal supremacy. Cases like Ware v. Hylton (1796), Martin v. Hunter’s Lessee (1816), McCulloch v. Maryland (1819), and Cohens v. Virginia (1821) established legal precedent for federal supremacy. The Supreme Court, of course, had to back up these rulings with constitutional support. That support came from a few clauses: the commerce clause, the elastic clause, and the supremacy clause. I want to particularly focus on the supremacy clause here, found in Article VI, stating that the Constitution and all federal statutes are the “supreme law of the land.” Given what they wrote in the Federalist Papers, the Federalists seemed to have supported the Supreme Court’s interpretations when writing the clause. However, it got more complicated with time.
The Ninth and Tenth Amendments in the Bill of Rights essentially negate, or at least counteract, the supremacy clause. Both amendments state that all powers not expressly granted to the federal government in the Constitution belong to the states and the people respectively, as long as those are not barred from the states in the Constitution (such as making treaties). Again, everything not mentioned is up for grabs. It would seem that the Federalists would have had quite a hard time accepting these amendments, and they did, but these were vital to the Anti-Federalist cause. One way we can also reach back into history to get the intent behind these clauses is Alexander Hamilton, who infamously proposed that the US should become a constitutional monarchy, and also said that he would like the US to become an “empire” in terms of economic and military strength. Madison, after becoming pretty disgusted with his party after the Alien and Sedition Acts were passed, teamed up with the Anti-Federalist-leaning Thomas Jefferson. Together, they wrote up the Kentucky and Virginia Resolutions. These resolutions were declarations of war against federal supremacy. Madison had always been more in support of the Bill of Rights anyway, as was Jefferson, and later they formed the Democratic-Republican Party to fight the Federalists. But even their efforts were wasted.
Today, federal supremacy is the norm. The States, in only 200 years—merely the blink of an eye in the scale of human history—have gone from being sovereign entities to completely subservient to the federal government. Constitutionalists know this. They may blame Lincoln and the Civil War. They may blame Teddy Roosevelt, or Wilson, or FDR. They may blame Obama, or even Bush. But the truth is they should be blaming the Constitution. The US has become an empire. This nation’s reach is worldwide. Its military has committed atrocities and is currently occupying most of the world. They prop up dictators and play both sides in foreign civil wars, completely ignoring the words of Jefferson and Washington. At home, things are getting worse by the day. The war on drugs, the war on terror, and the war on guns have combined to create the world’s most invasive and expansive police state. Civil liberties have all but gone out the window, and the federal government threatens any state brave enough to challenge its authority. They’ve covered up horrifying scandal after scandal, from the Tuskegee Experiment to Operation Northwoods to the Fast and Furious. It’s a sad state of affairs.
As for the centralization of power, we all know it’s happened. The inevitable, entropic force of corruption has burned away whatever separation of powers once existed, if that separation ever existed. Lobbyists, bankers, and government contractors are among the richest people on earth. Congress’ pet corporations have been rewarded for stupid behavior while small business is left to rot. The term “conflict of interest” has been abandoned by the media, who are in the pockets of both parties. The president is now an emperor, the congress is an association of oligarchs, and the courts (as they’ve always done) have been stripping away the rights of every person in this country.
Constitutionalists know this. They know the crimes and usurpations that have occurred over the past 200 years. They know that the world’s smallest government has exploded into a leviathan. What they refuse to understand is that these things haven’t happened in spite of the constitution. No, we know the history now. We’ve seen the scheming of the Federalists and their quest for centralization, their quest to create a mercantilist, militarist empire. We know that these things have happened under the authority of the Constitution.
Myth 6: The People Have Failed
This is the most pervasive and destructive myth of them all. Why? Because as long as the People get blamed, the Constitution is excused.
First, let me just say there is no such thing as “the People.” Let’s abandon that collectivist nonsense right away. You are an individual, and so am I, so let’s not implicate each other in our respective wants and desires. We are innately autonomous despite being deemed “citizens.”
Second, let me say that it’s a tragedy that common people get scapegoated for the abuses and usurpations of politicians, be they Federalists, Liberals, or Conservatives. I will agree that citizens are somewhat culpable, though, because without common people overtaken with apathy and ignorance, those politicians would have no one to rule over. Become a well-read slave who thinks for him or herself and you have trouble for the rulers. Here we have another issue. The politicians you Constitutionalists claim to hate are also Constitutionalists. That’s right. Obama is a Constitutionalist. Bush was a Constitutionalist. LBJ was a Constitutionalist. FDR was a Constitutionalist. So was Wilson, so was Lincoln, and so on and so on. Every corrupt politician with their eyes on power—in true Federalist fashion—use clever wording to their advantage. What better wording is there than “We the People?”
See, the Constitution is the very foundation of the federal government. It is the only thing standing between total state sovereignty and federal tyranny. The Constitution has negated the Bill of Rights because the two were never meant to co-exist. All this tyranny has been conducted under the authority of the Constitution. But what is the Constitution?
The Constitution is just a piece of paper. It’s ink and paper and nothing more. Any legitimacy it has been given has been done so by slippery, serpent-like politicians, and by the absent-minded sheep that bow down to it. Did you give your consent to this government? Absolutely not. Did you consent to be governed? No. I certainly didn’t. I want to govern myself. If you are a self-respecting, intelligent person, you have the inalienable right to determine your own fate. Be dignified. Don’t give up your essential liberty to a man in a fancy suit, but more importantly, don’t give up your liberty to a piece of paper. And when those men in fancy suits commit acts of evil, do not let them do it in your name.
When you blame “the People” for not being vigilant enough, you are right. But when you blame “the People” for not holding politicians to the Constitution, you are being a fool. They’ve been accountable to the Constitution. When they overstep those bounds set forth by the document (which are scant), what good is the Constitution? None at all. It’s a piece of paper.
So What Do We Do?
So what’s the solution? Get better politicians? Keep your eye on them? Get a better constitution? If being free and safe means constant babysitting of people you know to be inherently corrupt, don’t waste your time. If liberty and prosperity mean constantly reforming the schemes of smooth-talking opportunists for centuries, find other areas to expend your energy. Freedom is living your own life the way you want.
You are free. You are sovereign. You don’t owe anything to anyone. You certainty don’t owe your freedom to politicians, nor do you owe it to a piece of paper. The Constitution is a chain tying you and your children to the US government. As long as you worship the Constitution, you worship the very thing that gives politicians their authority over you.
Whatever tyranny they bring is the direct result of the Constitution and your loyalty to it. Stop giving in to them. Take control of your life. We’ve tried putting the “right people” in charge. The problem isn’t getting the right people in there; the problem is that there’s such a thing as “being in charge.”
“[W]hether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”
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