The Constitution’s Fatal Flaw

Advocates for individual liberty and freedom have rightly found several flaws with the US Constitution, on philosophical and moral grounds as well as on practical grounds.  Many of these criticisms offer the open-minded some reason to at least consider the possibility that the document should be viewed in a light other than that with which is normally shed.

I would like to review some of these criticisms before I come to what I believe is the one, most fatal flaw in the document – the one defect that most directly exposes that the purpose of the document was to enable usurpation, and the one defect that renders as irrelevant the entire purpose that men might normally enter into such a pact, therefore making the document useless for this most important end.

The Usual (and Not-so-Usual) Suspects: Why the Constitution is Flawed

I Didn’t Sign It

Can one be obliged to the terms of a contract to which he was not a willing party?  Can he be bound because his neighbor wishes him to be?  It would seem that reason argues against such a tyrannical concept, yet it is the premise underlying the validity of the Constitution: the social contract.

The best commentary and argument in this regard is offered by Lysander Spooner:

The laws holds, and reason declares, that if a written instrument is not signed, the presumption must be that the party to be bound by it, did not choose to sign it, or to bind himself by it….And if he do not then sign it, his reason is supposed to be, that he does not choose to enter into such a contract.

The Language is Vague, and the Meaning is Unclear

Two clauses offer good examples of such vague language – enormous loopholes, if you will.  These are the General Welfare Clause and the Necessary and Proper Clause.  The General Welfare Clause has been used to justify virtually any legislation by the federal government, for example:

In March, 2010, Representative John Conyers of Michigan said, because of the “good and welfare clause” of the Constitution, President Obama’s healthcare legislation was Constitutional.

As an aside, the Supreme Court found a different, even more sinister, reason to uphold this monstrosity of a bill – as Congress has the authority to tax any activity it chooses to tax, every act can be deemed Constitutional merely because it is taxable.  Add a new, significant flaw, I suppose.

As to the Necessary and Proper Cause, the term speaks for itself (despite the protestations of many Constitutional conservatives) – and has been thus exploited, beginning with decisions of the Marshall Court at a time when many of those who signed the document were still alive.  Even Jefferson, the so-called champion of classical liberalism, did nothing as President to dissuade the court from such expansive interpretations when he had the opportunity.

Having it in Writing

This is a flaw?  Many look to a written constitution as a check on state power.  The Magna Carta is hailed as groundbreaking in this regard.  For this, it is worth considering an alternative view:

Such an environment [without a written constitution], while somewhat unstable for the people, was even more so for the king.  He was only one man – a man with some form of kin-right or birth-right, eventually coming to be sanctified by the church, but still he was one man; and equally bound by and to the same law as all other men.  He was “controlled” by the law, not controller of it:

From the point of view of constitutional machinery, the control exercised in this way by the law will presumably be very incomplete and insecure – the very breadth of the mediaeval idea of law allows us to guess this.  But in theory there resulted a complete control of the monarch, a subjection to law so thorough that political considerations and reason of State were excluded and out of the question.

That the monarch faced the same insecurity and instability in the law as did the people was the most remarkable check on any potential abuse.  As opposed to modern, constitutionally defined states where it evolves that it is only the people that have to fear the law, in the mediaeval time all were equally subject to and therefore controlled by the law. 

It Has Been Hijacked

If it wasn’t for [insert your least favored President] and his action of [insert your example of his most egregious abuse], or if it wasn’t for [insert your least favored Supreme Court Justice] and his vote for [insert your example of his most horrific decision], the Constitution would work just fine.

It Exists

There are some who suggest that the Constitution is not flawed at all, and that it has accomplished exactly that which was intended – to create an ever-expanding centralized state.  So to these critics, the mere fact that the document exists is the fatal flaw.  I again return to Spooner:

But whether 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.

I tend to agree with this last sentiment, and tend to believe that the Constitution has achieved that which was intended by its most ardent advocates.

Having outlined a few of these flaws, I remain open to the possibility – in fact, the necessity – that men would voluntarily come together and form some pact, some contract, with the objective of one very specific purpose – sadly, a purpose not identified anywhere in the US Constitution.

Why Come Together to Form This Thing Called Government?

From the pen of Thomas Jefferson:

We 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.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….

Sadly, Jefferson’s use of the phrase “pursuit of happiness” either accidently or purposefully confused what I believe to be the more appropriate terminology in support of the formation of government, offered by John Locke:

Locke argued in his Two Treatises of Government that political society existed for the sake of protecting "property", which he defined as a person's "life, liberty, and estate".  

Finally, from Frederic Bastiat:

Each of us has a natural right – from God – to defend his person, his liberty, and his property….if every person has the right to defend – even by force – his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly….And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute.

If this is true, then nothing can be more evident than this: The law is the organization of the natural right of lawful defense.

If a nation were founded on this basis, it seems to me that order would prevail among the people, in thought as well as in deed.  It seems to me that such a nation would have the most simple, easy to accept, economical, limited, non-oppressive, just, and enduring government imaginable – whatever its political form might be.

While I take comfort that such brilliant liberal thinkers as these have offered these words, their approval is not necessary for me to be comfortable in my view: when considering what it is that I would look for in being party to a voluntarily formed institution for the purpose of government, it would be to assist me in the protection of property.  I would ask nothing more, as all other functions currently assumed by the leviathan that crushes us can and should be handled in a market setting, to the extent these are desired at all.

I would agree to a pact that offered protection for my property; for this I would offer my assistance in exchange.  For protecting my property, I would voluntarily go in league with those in the community that I would find helpful to me towards such ends.  By saying this, I do not suggest any form of monopoly or coercion in this pact – only that it is an agreement that I would enter into.

I have witnessed and been party to many discussions about exactly this question – usually in the context of discussing anarchy as opposed to some version of that which is the current state.  In the end, the issue of the warlord is raised – one way or another, men must join together to defend jointly that which they cannot defend individually.

To varying degrees, Jefferson, Locke, and Bastiat recognized that this is the fundamental purpose of government – the protection of property and life, the organization of the natural right of lawful defense.  As for me, if government is not for the benefit of the protection of my life and property, I have no use for it.

For my purpose here, it is not necessary to draw a specific line as to what this concept would mean in practice – the line is somewhere in between a neighborhood watch program and drone strikes on wedding parties 10,000 miles away; somewhere in between hiring a neighborhood security guard to walk the streets and the dozen or more spy agencies currently in existence.

But the concept is the protection of private property.  If the concept of protection of private property is not explicit and absolute in the contract, then I find no reason to go in league with others to form “government.”

Where is this identified in the Constitution?

The Constitution contains almost 4,500 words.  The term “property” appears exactly once:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

With this, the Constitution provides for the control, use, and disposition of property belonging to the United States government, but is silent regarding the same authority and protection to those who reside therein.

The first ten amendments of the Bill of Rights contain just over 700 words.  In these, the word “property” appears twice, both times in the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This amendment establishes ground rules of how an individual might be deprived of property, but nowhere is there anything said specifically about the role of government in protecting private property – there is no pact of the type I suggest. 

To make matters worse, even the watered-down protection afforded by this amendment has ceased to have any meaning: what passes for “due process of law” is laughable, and the only “just compensation” for a property owner is that compensation to which he voluntarily agrees – not compensation determined by force through eminent domain, or taxes for so-called public goods and services. 

In the remaining amendments, there is only one use of the term:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

No requirement that the government protect my property is presented here either.  And once again, a meaningless amendment as the phrase “due process of law” is a malleable term as it is used today.  Law is meaningless if it does not protect the individual.  It is meaningless if it does not protect private property.  The act of passing a “law” on any matter in any direction is not “due process of law.”  The tyranny of the majority is not the foundation on which proper law can be built.

There is no intent in the Constitution to provide for the protection of private property, as there is no explicit statement in the document for the protection of private property.  Nowhere does the Constitution explicitly provide for this as a role for the government being formed.  There is no pact or agreement for government to provide the one and only useful function for which I would find reason to offer support – that being to protect my property.

What do I care about the terms and methods of elections, the rules that are supposed to be held between the general government and the states, the supposed separation of powers?  Of what use is any of this to me if protection of my property is not part of the deal?

For the purpose of the protection of my property, I will freely and gladly make pact with my neighbors, and fund that which is necessary to achieve this objective.  Call this government, or any other name you choose.  But if the Constitution is to be useful to me for anything, it would have been this.

Yet, there is not one single statement about this in the Constitution. 

And this is the fatal flaw.  The flaw that exposes the document as one devised to enable the usurpation that has occurred from the beginning.