The Anarchy of Constitutionalism (Why Liberty is Unsustainable)

Free Republic ^ | 18 Sep 10 | Self

[OneWingedShark]

The Anarchy of Constitutionalism
or
Why Liberty is Unsustainable

There seems to be a lot of under current and excitement about constitutionalism in the general population these days, and it leads one to wonder how far this political fad will last; but I get ahead of myself I have to show WHY it is nothing more than a fad.

First off, at the very basis of Constitutionalism there are two things which most people cannot stand (and indeed have been trained and taught not to stand):

1. The first, simply put, is that words mean things.
2. The second, also simply put, is that it requires a real understanding of authority.

Let me explain these points, in their more complex forms; starting with the second and then moving into the first; authority and power are inextricably linked, though not in the physical-sense, more on the philosophical and moral levels, for it is by authority that virtually all societies are founded [and certainly in all hierarchical organizations] by a leader and people recognize authority by the position of that leader. This gives rise to the mistaken assumption that it is the position which gives the leader their authority; it is not the mere position that gives a leader authority… it is the mere fact that the people are following him that makes him a leader and it is in the act of following that the people create a position for the leader. The concept of a Constitution alters this natural pattern slightly: the constitution is the formal creation of these position[s] of power that leaders would naturally fill “in the wild” and limits the authority of the position to some specifically delineated section. This means that there are valid areas for the exercise of power from that position and invalid areas.

Now, you may think this is all good; but let me remind you of human nature: the one in such a position of power will push against the edges and boundaries of his limited legitimate area in an attempt to expand it, while one not in a position of authority will tend to assume that the power & authority comes from the position (rather than the position being made by authority). It is here where words actually meaning things would scare you: because if words were absolute then the invalid actions of those in power (those actions which strain on the borders of what is dictated by the constitution) would become too obvious and counter the model of authority in your head, so you soothe your own soul by insisting that words are only words and nothing to be concerned over… but even this self-delusion needs help; this is where those in authority tell you that it’s OK because they’re here to comfort you and that this is the way things are supposed to be which you swallow whole like a nursing child.

But if the Constitution was the source of authority, its words meaning specific things, delineating the roles of these positions of authority then things would be utter chaos; the meaningless words crystalizing into clear forms and straight lines giving clear and definite areas to these positions of authority then things instantly change.

For example, if words mean things, then the oath the Supreme Court’s Justices say bears some investigation:

I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Justice of the Supreme Court under the Constitution and laws of the United States. So help me God.

Yet the popular belief is that the Constitution is whatever the supreme court rules/finds that it is; if that is the case than the oath is utterly meaningless, as it is nothing more than saying “I promise to submit to the limits [of authority] placed on my position by the document which says whatever my group says it says.” Utterly Ridiculous!

Furthermore; we say that if the document of the Constitution means whatever the Supreme Court, as a whole, says then consider this: any dissenting opinion published by a supreme Court Justice could be considered sedition; it is an opinion contrary to the constitution by our current definition… but even furthermore, no Supreme Court decision could EVER validly be based on a previously dissenting opinion because [by definition] that opinion id contrary to the constitution.

This means that for a Constitutionalist’s worldview to have any consistency the Supreme Court itself is bound by the Constitution. This is further supported by the separation of the powers of the state into distinct branches; it is the Legislature’s job to create and change laws, not that of the Judiciary!

Notice that I did not say repeal laws, that is because, logically speaking any mere law or rule or regulation that is contrary to the Constitution is null and void; and it is the duty of all the branches to see that none of their own policies or their coequals’s policies are contrary to the constitution – so any portion of the government should, in theory, be able to say “STOP! I don’t think this is Constitutional.”

But the Judiciary isn’t the only place that would be intimately impacted, “to their disadvantage” people would say, if we were to realize the true impact of this ‘new’ view of authority and words. Take the military, for instance the Oath of Enlistment for the National Guard is as follows:

I, (name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the State of (state name) against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the Governor of (state name) and the orders of the officers appointed over me, according to law and regulations. So help me God.

And the oath of Officers in the National Guard is as follows:

I, (name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State (Commonwealth, District, Territory) of [FEDERATE STATE NAME] against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will obey the orders of the President of the United States and the Governor of the State (Commonwealth, District, Territory) of [FEDERATE STATE NAME], that I make this obligation freely, without any mental reservations or purpose of evasion, and that I will well and faithfully discharge the duties of the Office of [grade] in the Army/Air National Guard of the State (Commonwealth, District, Territory) of [FEDERATE STATE NAME] upon which I am about to enter, so help me God.

The National Guard oaths are supersets of those of the regular army; so, in dealing with all their elements we deal with those smaller sets’s as well.

Notice, first off, that the person taking either oath has as the “primary clause’ that he will support and defend the *Constitution* of the United States [and then the State]… acknowledging the constitutions as the source of the authority of the state means that, under the military-mindset, if the state acts contrary to the constitution it is exactly equivalent to someone publicly refusing orders from their superior-officer, nothing less that absolute insubordination!

Secondly, we notice that the oath is for allegiance to the Constitution; not to the state! In so far as this oath is concerned, even the state’s non-existence would not impact that allegiance.

Third, there comes the “orders of the President and the Governor;” it is interesting to note that the oath for officers of the regular army or federal reserves do not contain this clause. The relatively late appearance of any mention of the Commander in Chief [the governor when not on federal duty, otherwise the president] illustrate exactly how low of a precedence *ANY* sort of consideration for a particular person is under a Constitutionalist mindset; if it [the military organization] were able to function without a Commander in Chief I daresay that the militaries would be autonomous and virtually unanswerable to the State!

[OneWingedShark]

I was recently accused of "being an anarchist" and setting myself as "sole arbiter of the law" for insisting two things:
1 - That words mean things, and these definitions may be used systematically/logically; and
2 - That the Constitution was of more authority than contrary laws made by the government [which was set up by that constitution].

So, I wondered what would lead someone to think that and this is the result I came up with. {I may add more to this later... it still feels unfinished to me.}

Comments?

[counterpunch]

Wut?

[Terrence DoGood]

Huh?

[OneWingedShark]

Ping! / Thought you might like this.

[OneWingedShark]

>Huh? /Wut?

Think of it in terms of rats; scientists found that they could condition rats so that they would rather stay in their [familiar] painful environment* than go outside their cage... even with cage door left wide open. (*the painful environment was the electrification of the cage floor.)

[Talisker]

How can you claim to discuss the Constitution and not address the doctrine of negative rights?

You need to read and learn, not post.

[OneWingedShark]

...Actually I do discuss negative rights [though tangentially]; I just don’t use the term as such.
Look around the word forms of “delineate.”

[Talisker]

...Actually I do discuss negative rights [though tangentially]; I just don’t use the term as such. Look around the word forms of “delineate.”

You wrote: "...and limits the authority of the position to some specifically delineated section.

This is grossly incorrect. Negative rights are not a "section" of the Constitution - they are the fundamental orientation of ALL power in it. If anything, designated powers are a "delineated section" of fundamental negative rights, lthough that would be a terrifically clumsy way of putting it.

You don't know what you're talking about.

[OneWingedShark]

So then, are you saying that a definition of something by giving all the things that it is not is not a valid definition?

Negative rights are, to my understanding, the things that the government is prevented from doing (as opposed to obligated/authorized to do); i.e the fourth amendment [supposedly] prevents the government from issuing a blank “find dirt on this guy”-warrant.

The Constitution is NOT a social contract between [particular] individuals, rather it is a contract between the people-themselves which sets-up the government and as such details how that government should interact with its people.

[hosepipe]

True... How can States be sovereign and be loyal to a “federal” Constitution.. at the same time.. Could be why America cannot figure out whether its a Republic or a Democracy.. even tho a democracy is a political disease that degrades into socialism..

[OneWingedShark]

>True... How can States be sovereign and be loyal to a “federal” Constitution.. at the same time..

Well, it’s supposed to be “kinda like” Power of Attorney; when I was deployed overseas I set up a Power of Attorney with my father so that he could do certain things: namely take care of any big financial things that I could miss (like the phone bill before I shut it off, or somesuch). Only in the case of the federal government it’s [supposedly] MUCH more restricted... more like limiting the power of attorney to medical matters like a “living will.”

The specific things that the States have “Power-of-Attorneyed/willed] to the Federal government are actually quite small: things like a common money, a common rule for immigration, establishment of a post-office [which is NOT Constitutionally mandated to generate no income/profit], and ‘regulate’ interstate commerce.

The regulate interstate commerce is where things have been SOOOO badly read over the years {a symptom of the “the supreme court says what is-and-isn’t constitutional” mindset}. This is roughly analogous to you having a living will for medical purposes, and then the executor of it running your life because “your life impacts your health; and your health is a medical issue!”

>Could be why America cannot figure out whether its a Republic or a Democracy..

Could be; but I think that people are just too used to the government telling them what the Constitution means {and therefore what the government’s purpose and authority is}.

>even tho a democracy is a political disease that degrades into socialism..

Not always. There are kingdoms that have come from ‘democracy’ notably recorded is that of the Israelites.

[Gilbo_3]

thanks for the ping...I’ll ponder it, but it did seem to be missing something...the negative Rights pissin match will be worth a check later...8^}

[Monorprise]

If the U.S. Constitution is to mean anything at all it must be defined by those who have empowered the same to secure their rights.

As individually as possible, given that groups are not the subject of protection for republican governments but rather all the individual members of groups.

[OneWingedShark]

>If the U.S. Constitution is to mean anything at all it must be defined by those who have empowered the same to secure their rights.
>
>As individually as possible, given that groups are not the subject of protection for republican governments but rather all the individual members of groups.

This is the whole point; as things stand the “normal citizen” has ceded his understanding of [and reasoning upon] the Constitution. ‘Liberty’ cannot be sustained in that environment because the Constitution is the very element that defines the power/authority of the government.

“It is not permitted to the most equitable of men to be a judge in his own cause.” — Blaise Pascal [Pensées]

[Monorprise]

Yea, I’ve been coming to understand this more and more for over a year now.

I’ve spent a lot of time working out ways to both better my understanding of the concept and just as importantly increase other peoples understanding.

If the U.S. Constitution is to mean anything at all it must be defined by those who have empowered the same to secure their rights, not those who are the object(the Government) printable restraint of the same.

I think we would be wise to simply and segregate our Constitution from the laws of the government authorized by that constitution. For the ones who must interpret and enforce each must be at opposite ends of the table.

Due to the practicality of individual people standing up to something so powerfully as the Federal government, it is clear that the only realistic level of resistants to the Federal Government is the State Governments. It is therefore essential that at least some of them are on the side of the individual people.

We have no hope of standing up to the Federal government and confounding their raw force with out the aid of our State.

... We may need to pull out of Iraq and Afghanistan and completely disarm the Federal miltiary forces or at least transfer their assets to the various State National guards for safe keeping. Admittedly we might be taking a temporary loss but if we let the Federal Government keep its guns we will be losing A LOT more then a war over seas, and we will have no chance of regaining that ground.

Hopefully the wars will be over before it comes to that.

“if words mean things, then the oath the Supreme Court’s Justices say bears some investigation:
“I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Justice of the Supreme Court under the Constitution and laws of the United States. So help me God.”
Yet the popular belief is that the Constitution is whatever the supreme court rules/finds that it is; if that is the case than the oath is utterly meaningless, as it is nothing more than saying “I promise to submit to the limits [of authority] placed on my position by the document which says whatever my group says it says.” Utterly Ridiculous!”

You know it really is a mazing how bluntly people can say things without most people really taking note of what they actually said.

The U.S. Supreme Court calmed this authority from one of its own edicts under the Marshal court Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

In short the court gave itself this power after presuming it had the broad power to “Say what the law is” even that law which is specifically binding upon them and their employers.

This is of course NOT to say that everyone just accepted what the court said. Indeed until about the time of the “Civil War” most people believed it was the people in their capitalist as States who had the final word on the meaning of the Constitution.

The “Civil War” of course ushered in a whole new era of Federal Imperialism, due to the simple fact that the Feds had not only acquired the means to force their way down everyone else’s throats with the sword they demonstrated the will.

Whether or not you supported the “Union” cause in that war or not, you must acknowledge that the act of fighting the war did unbalance the balance of power in federalism.

This is one of the Main reason most of the Founders were so afraid of a Standing army, not just because of what rogue generals could (coups), but because what they feared the president and congress could do with the ability to enforce their edicts directly. An ability afforded to them only by the Standing army under their direct control.

Remember the militia(National Guard) has all its officers and training appointed by the States, so they are unlikely to mobilize against the wishes of their State government.

A fact recently reaffirmed in the Katrina mess were President Bush tried to mobilize the LANG and move them into the city in an effort to force Louisiana Governor Blanco to abandon her containment/evacuation strategy and deal with New Orleans on the terms of the Mayor’s weathering strategy.

[Monorprise]

“Third, there comes the “orders of the President and the Governor;” it is interesting to note that the oath for officers of the regular army or federal reserves do not contain this clause. The relatively late appearance of any mention of the Commander in Chief [the governor when not on federal duty, otherwise the president] illustrate exactly how low of a precedence *ANY* sort of consideration for a particular person is under a Constitutionalist mindset; if it [the military organization] were able to function without a Commander in Chief I daresay that the militaries would be autonomous and virtually unanswerable to the State!”

Not necessary, legally in the united States the Federal military is supposes to answers to the Sectary of Defense not just the President. Likewise every State has an Adjutant General, who is the head of the State’s military forces.

My point is if we didn’t have a Governor or President, theses people would be elected by the State legislator or congress directly to preform their spesfic functions, and our system almost by default would resemble something like the parliamentary systems of Europe. With the speaker of the most numerous branch of the legislator becoming the general head of government due to their indirect power to fire or employ any of the administrators.

[jonrick46]

So you would compare the Constitution as a cage for rats? Using that analogy, I would be more concerned about the DemonRATs who go outside the Constitution.

[The Comedian]

Brilliant, thanks for the ping, Shark.

Frowning takes 68 muscles.
Smiling takes 6.
Pulling this trigger takes 2.
I'm lazy.

[Abundy]

The term "negative rights" is fundamentally flawed and should never be used in a sentence. The two words should not appear together at any time or place, with "negative" operating on "right" to describe a type of "right."

As defined by the Declaration of Independence, Rights are affirmative, and as such, can limit or trump the scope of powers and authorities that may be delegated to government. Furthermore, governments cannot have "rights," only delegated authority. Therefore a "negative right" cannot exist.

Anyone that uses the term "negative rights" is a moron and has no concept of our Constitution.

That last sentence is not directed at you, but at the, ahem, "Constitutional Scholar" currently infesting the White House.

[flowerplough]

The America of my time line is a laboratory example of what can happen to democracies, what has eventually happened to all perfect democracies throughout all histories. A perfect democracy, a "warm body" democracy in which every adult may vote and all votes count equally, has no internal feedback for self-correction.... [O]nce a state extends the franchise to every warm body, be he producer or parasite, that day marks the beginning of the end of the state. For when the plebs discover that they can vote themselves bread and circuses without limit and that the productive members of the body politic cannot stop them, they will do so, until the state bleeds to death, or in its weakened condition the state succumbs to an invader — the barbarians enter Rome.

-Robert A. Heinlein's To Sail Beyond the Sunset

(1987)