Our Imperfect Union

In 1776, the Founding Fathers of the United States of America drafted and ratified the resolution which declared themselves sovereign from the King of Great Britain. Guided by the philosophy of the Enlightenment, these colonial leaders professed all men to be created equal and announced the supremacy of man’s rights to the authority of any government, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” With those words, the Founders reversed the notion which had pervaded throughout human history that governments exist to rule the people, not to protect their rights. Thus began the freest country on the face of the earth.

After years of fighting, the American people achieved in blood the independence which their elected leaders had so skillfully articulated in ink. Still, there remained to be resolved the issue of how the once separate colonies were to be united, if at all. The first attempt at a constitutional republic occurred in the form of the Articles of Confederation, passed by the Continental Congress just over one year following the Declaration of Independence while the continent was still gripped with war. Though it was unquestionably true that the government set out under the Articles posed almost no threat to individual liberty, it did virtually nothing to reign in abuses of said liberty as enacted by the states, nor could it sufficiently manage its own foreign affairs. It was a document which, first and foremost, treated the states as sovereigns, not the people, and its structure was such that the government was inherently ineffective in carrying out all just powers granted to it.

As a consequence, the Founders committed treason for the second time in their lives. They rejected their previous wartime government and passed the document that would later become the Constitution of the United States of America. In just three words, the Founders were able to solve many of the issues of the Articles, arguing that individuals, not states, are the ultimate source of any governmental authority: “We the people…” Further, the Constitution outlined the permanent structure of the federal government and gave it sufficient latitude of freedom to handle fiscal and foreign affairs.

But the Constitution only created a “more perfect Union,” not a perfect one. Many individuals today assert themselves to be “constitutionalists,” individuals who want to restore the Constitution to its proper place as the “supreme law of the land.” Laudable though this may be, as constitutionally limited government is an unquestionable necessity in a capitalist system, it ignores the moral issues within the Constitution, both original and amended. The results of simply ignoring the constitutional limitations placed upon our government can be seen in today’s mixed economic system, and they are far from desirable. That being so, it is equally ill-advised for supporters of capitalism to ignore the Constitution for their own purposes, lest they give moral sanction to statists doing the same – but it does not alter the fact that there are aspects of the Constitution which should most certainly be revised.

Though it has long since been resolved through constitutional amendment, one of the original contradictions within the principles of the Constitution was its sanction of the institution of slavery.  Culturally during the latter part of the Eighteenth Century, slavery was viewed as a stain on society – something which existed, but ought to end eventually. Because the Founders refused to directly confront the issue, slaveholders became emboldened and began to virulently defend slavery as not only a necessity, but a moral good. While the British were employing their navy to end the international slave trade during the early Nineteenth Century (necessarily capturing a few American vessels in the process), the generation which followed the Founders was more concerned with how to manage the spread of slavery into the territories. The issue eventually exploded in the form of the Civil War, ultimately leading to the demise of the feudal slave state in the form of the Thirteenth Amendment, though ending state-sponsored segregation would take another hundred years.

Almost simultaneously, the means for solving another constitutional problem was also implemented in the form of the Fourteenth Amendment. By making federal citizenship, along with the rights attached to it, superior to state citizenship, the Fourteenth Amendment effectively opened the door for substantive due process to incorporate federal rights to the states. It is unfortunate that the Court failed in its responsibility when ruling in favor of Jim Crow legislation in Plessy v. Ferguson (1896), but on the whole substantive due process has been successful. Though current Court focus has been on criminal rights and though cases on social rights are often contentious, there was once a time in which the doctrine of substantive due process was used to protect economic rights as well. Called after the case which shares its name, the Lochner Era was marked by the High Court frequently striking down statist economic legislation – this was not done with 100 percent consistency, but the individual was protected far more from similar legislation than he is today.

Specifically, the Fourteenth Amendment was crafted to halt violations of rights on the part of states and, according to recent jurisprudence which overturned the Chicago handgun ban, any municipal or county government directly sanctioned by or subservient to the states. But nearly 150 years after the ratification of the Fourteenth Amendment, state violations of individual rights are  still overlooked by the court – compulsive union membership, anti-sodomy laws, drug prohibitions and any other example of unwarranted government action are often upheld by the judiciary. What is to be the solution to these problems?

As done in Lochner v. New York (1905), the Supreme Court should begin to practice a consistent Ninth Amendment jurisprudence. This can only be done though the nomination of justices who truly understand the origin of man’s rights and can defend them rationally in their opinions. Is this likely to occur soon? No – America is still a long distance from being able to achieve capitalistic politics, but even so this would only solve the problem functionally, not legally. Legally, the ability for irrational justices to reach the Court and issue opinions which misunderstand the origin of rights and, consequently, the rights themselves still exists under Ninth Amendment jurisprudence. As such, it would require a constitutional amendment to clarify the Ninth in a way that permanently constitutionalizes the fact of reality that man’s rights are derived from his life as an ultimate value. Additionally, clearer provisions that would prevent the states from violating those rights at any level would also be imperative, but this only solves the issue broadly and could allow for existing clauses to contradict the new amendment if they are not specifically addressed.

Two of those constitutional provisions are the Sixteenth Amendment and Seventeenth Amendments, products of the Progressive Era. The first grants Congress the ability to tax income, something which should be unequivocally voided by a future amendment. The second is more of a flaw in the structure rather than the powers of Congress which has facilitated subsequent expansions in the size and scope of the federal government. By allowing Senators to be elected directly rather than by the state legislatures, they became more responsive to temporary “passions of the people” and “the spirit of faction” which the Founders warned against in the Federalist Papers. In the event that a sudden call for government expansion erupts amongst the people, now Senators are more prone to acquiesce than they would be if elected by the state legislatures. Separating the Senate from these fleeting passions becomes invaluable when one realizes the Senate’s power over confirming presidential nominations and ratifying treaties. In any case, the original design of the Senate should be restored – the state legislatures would “benefit” less from federal expansions than the people would and, as such, would be less prone to irrational desires to see it expanded.

But errors such as these are not confined merely to Progressive Era amendments – an error continues to exist in one of the original Madisonian Amendments which later became the Bill of Rights. The Fifth Amendment, the cornerstone of due process jurisprudence before the Fourteenth Amendment, specifically sanctions the government taking private property without the consent of the owner. No amount of “just compensation” is enough of an apology for depriving a man of property which he had no intention to relinquish. Over two centuries, the clause itself has been perverted further, now allowing takings to occur for as vague a reason as “public purpose,” not the intentional and clearer wording of “public use” as it is enumerated. If man’s life, liberty, and property is to be annulled, this power must be denied to both the federal government and the states for any purpose.

The final problem within our Constitution that deserves discussion within the context of this piece is Article I, Section 8, Clause 3: the Commerce Clause. Throughout the previous century, the Commerce Clause has demonstrated itself to be the most misunderstood and abused provision within the Constitution. First intended by the Founders to ensure a system of free trade between the states, the Commerce Clause has been twisted and perverted by statists to allow any number of unconscionable violations of liberty. Its wording was transparent enough to make clear that states cannot legally injure the free flow of goods and services to and from any of their neighbors, but vague enough to allow Congress the authority to deny individuals their rights.

Since West Coast Hotel v. Parrish (1937), the Supreme Court has permitted the federal government and the states to regulate the economy almost without restriction. The number of cases in which the Court upholds economic regulations far exceed the number which it strikes down. Since then, Social Security, Medicare, and more recently Obamacare and Dodd-Frank have all been logical steps following from that original jurisprudential decision. Fortunately, Judge Roger Vinson and other lower federal judges have opened the door for this trend to be halted and reversed. It is unlikely that we are at the dawn of another Lochner Era – the challenges to Obamacare must still pass the Supreme Court – but hopefully our judicial system is making progress in renouncing its past errors and ending the continual errors of the legislature and the executive.

Even so, this error is no different from the previous ones. So long as the meaning of the Constitution is dependent on the philosophy of justices charged with interpreting it rather than direct, unambiguous, deductive reasoning, then the liberty of Americans cannot be guaranteed. As a consequence, the Commerce Clause should be stricken from the Constitution by amendment, along with any power to tax, and replaced with a protection from any and all government intrusions into the economy. Just as church and state have been effectively separated, so too should be the economy and state.

As an objective essayist, I must admit that changes such as these will require many years (or more likely decades or even a century) of philosophic revolution to achieve fruition. The proper majorities required to ensure that man’s rights are protected by constitutional amendment are immense, and properly so – all just governments provide their citizens with options for recourse when the rights of those citizens have been violated, but when that recourse involves altering the supreme law of the land, it should not be done lightly, lest those who seek to injure rights be allowed easy access to changing said law as well. No government that has ever existed has been wholly free, including the government sanctioned by Constitution itself. Though a perfect government has never been achieved, that does not mean that a perfect government is impossible, nor does it mean that it should not be striven for. It should be remembered that this should be the goal of those who love liberty: not returning to the Constitution, but perfecting it.

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