America: Untethered from Its Constitutional Moorings

Americans have untethered their government from its moorings.

The colonists fought a war to tie government down. Under British rule, government had become more and more arbitrary. Parliament and the King could issue edicts and pass laws detached from any absolute guiding principles.

Americans called it tyranny.

In the British system, the constitution evolved. Government was not limited by anything other than its own will. In fact, the government itself established constitutional principles as it went. It was the quintessential “living, breathing constitution.”

As I explained in my recent article “America Embraces Tyranny It Fought to Reject,” in the British system, no distinction existed between “the constitution or frame of government” and “the system of laws.” They were one and the same. Every act of Parliament was, in essence, part of the constitution. It was an absurdity to argue that an act of Parliament was “unconstitutional.” The legislative body was sovereign and anything it did was, by definition, constitutional. In fact, parliamentary acts became part of the constitutional structure.

The American colonists rejected this concept of government. They believed something must exist above government, a structure anchoring it in place. In the American conception, constitutions were not malleable by government institutions. Instead, government was limited and circumscribed by the constitutional framework.

Constitutions were meant to remain fixed above the government.

A year after Parliament began passing the Townshend Acts in 1767, the Massachusetts legislature approved a document written by Samuel Adams and James Otis Jr. known as the Massachusetts Circular Letter. It expresses this revolutionary conception of government, arguing that when Parliament acts outside of its constitutional bounds, it destroys its own foundation.

The House have humbly represented to the ministry their own sentiments, that his Majesty’s high court of Parliament is the supreme legislative power over the whole empire; that in all free states the constitution is fixed, and as the supreme legislative derives its power and authority from the constitution, it cannot overleap the bounds of it without destroying its own foundation; that the constitution ascertains and limits both sovereignty and allegiance, and, therefore, his Majesty’s American subjects, who acknowledge themselves bound by the ties of allegiance, have an equitable claim to the full enjoyment of the fundamental rules of the British constitution.” [Emphasis added]

In the American conception, government was not sovereign, the people themselves were. Government was created to serve the interests of the people. In 1775, Benjamin Town published an article known as the Crisis Number XI fleshing out this idea. He echoed the words of Adams and Otis, arguing that the people establish constitutions, they must remain fixed and government must operate within prescribed limits.

It cannot be denied, but that the laws, which were then enacted to establish upon a foundation not to be again shaken, the freedom of the English nation, and the liberties of the people ought to be considered, as unalterable, the very basis and boundary of the King’s prerogative, and the rights of Englishmen, something in the government like the center in the earth, the fixed point, round which all things move, and to which they tend… Something must exist in a free state, which no part of it can be authorised to alter or destroy, otherwise the idea of a constitution cannot subsist; for unless we allow the freeholders and electors of Great Britain to be superior to a House of Commons, we grant to them an absolute power, a power inconsistent with the notion of a free people, and destructive of the principles of a mixed government.”

In these words, we see the developing ideas that would eventually form the foundation underlying the U.S. Constitution. No part of government was to exercise unlimited power. The people of the states established a union based on the principle that the new general government was to remain limited by the fixed meaning of the Constitution. The people delegated specific, enumerated powers, leaving all other authority to the pre-existing states and the people themselves. Any action taken by the government outside of its prescribed power was considered a usurpation, and by definition void.

As James Iredell, a North Carolina ratifying convention delegate put it, a law “not warranted by the Constitution is a bare-faced usrupation.”

When Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.”

Iredell reflected the belief that the Constitution was set, fixed and unalterable. Only the people themselves possess the authority to change the Constitution. In the American system, government institutions, including the Supreme Court, do not have the power to alter the intent or the meaning of the Constitution – the supreme law of the land.

In 1773, Charles Turner, pastor of the church in Duxbury, Mass., preached a sermon in front of Gov. Thomas Hutchinson. In Turner’s message, you find this developing concept of a sovereign people establishing and controlling government within prescribed limits.

Rulers are so prone to have, vastly at heart, certain worldly interests, inconsistent with the publick, welfare and the duty they owe to the community, that it is incumbent on the people (whose right it is to do this, on proper consideration, and every thing else, respecting government, which they judge will be for the salvation and advantage of the whole) to fix on certain regulations, which if we please we may call a constitution, as the standing measure of the proceedings of government; so determining what powers they will invest their rulers with, and what privileges they will retain in their own hands.” [Emphasis added]

Notice in Turner’s words a general distrust of people in power. This was a driving force in revolutionary era politics. Men could not be trusted to exercise power, therefore it had to remain carefully circumscribed, divided and checked.

UNLIMITED power has generally been destructive of human happiness. The people are not under such temptations to thwart their own interests, as absolute government is under to abuse the people: and, that the publick interest has, generally and on the whole, succeeded beyond all comparison better, where the people have, by the barrier of a constitution, retained power in a great degree in their own hands, than it has under despotick governments, we dare appeal to all the sensible, humane, impartial examiners of universal history.” [Emphasis added]

Turner goes on to insist the people must “fix boundaries” between themselves and government through their constitution.

A CONSTITUTION being settled by the public consent, the magistrate, awed by that Sovereignty which God has been pleased to invest the people with in the case, ought ever to maintain a sacred respect to such constitution, in every instance of government legislative or executive. The community having a right to fix boundaries between rulers and people by a constitution, it is impossible that individuals should have a right to remove them, however high the rank of such individuals may be. Rulers as well as others, have an undoubted right to make fair, and, as they judge, rational proposals for the amendment of a constitution; but by no means to attempt an alteration of it, without the publick consent: by such an attempt, they will merit a degree of blame proportionable to the importance of the people’s fixing constitutional limits to the higher powers, in view of the common security.” [Emphasis added]

Americans, by and large, have rejected these fundamental founding principles. The American political system today has become every bit as despotic as the British system the colonists fought to throw off. In the United States today, the federal government defines its own limits and alters the meaning of the Constitution at will. While the colonists chaffed under the usurpations of the King and Parliament, Americans today have submitted themselves completely to the edicts of nine politically connected lawyers on the Supreme Court.

The U.S. system looks nothing like the vision of America’s founders. The American people have intentionally untethered it from its constitutional moorings in order to advance countless political agendas. Pragmatism now rules the day.

People still love to talk about “American exceptionalism.” But what was it that made America unique and exceptional? It was the principles of self-government, a devotion to liberty and a commitment to freedom. Americans long ago tossed that away, trading it for a false sense of security and goodies passed out by politicians.

You won’t make America great again by voting for some guy to spend four years in the White House. America will only rediscover her greatness when she once again embraces her founding principles.

Sadly, they seem to be floating ever further away.

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4 Responses to “America: Untethered from Its Constitutional Moorings”

  1. don duncanMarch 13, 2016 at 7:50 am #

    “…so determining what powers they will invest their rulers with, and what privileges they will retain…”??? Shouldn’t that be, “so determining what privileges they will invest their servants with, and what powers and rights they retain.”?
    Govt. operates (serves) us “by privilege” and we retain our powers by right, not privilege. When govt. assumes powers not authorized, or authorizes itself to violate rights, it becomes null and void, e.g., the NDAA, the Patriot Act. The govt. has been rogue for over 200 years and becoming more tyrannical with every decade.

    • Michael MaharreyMarch 13, 2016 at 6:14 pm #

      I don’t disagree with the substance of your point, but I think you’re misconstruing what Turner was saying. He was talking about delegating power to government. Obviously the people do “retain” powers not delegated. But government may exercise powers that are delegated until the people choose to take them back. That’s what he meant by “investing” powers. Delegating them to government. Privileges in 18th century legal jargon referred to benefits bestowed contrary to the usual course of law upon one or more persons. A patent would be a privilege. Turner is merely talking about establishing proper powers of government. The main point being, as you said, that when government goes beyond what is delegated it usurps power and become tyrannical.

      • 1voluntaryistSeptember 4, 2016 at 2:17 am #

        If I delegate to someone the power to paint my house & sign a contract, I retain the right to paint my house. I don’t lose it when I give someone else the power to do it. The same holds true for governing. I may govern myself, or delegate that power. But I may not speak for my neighbor, binding him to my contract. As for patents & copyrights, intellectual property is quite different from all other property. Ideas can be shared infinitely without loss or dilution. No one has a monopoly on ideas, or can claim to possess ideas exclusively. Therefore, no one can grant that right to another, or delegate it to govt. “Powers of govt.” has traditionally meant exclusive monopoly on force. Since no one has such a power, no one can delegate it to others, creating a ruling elite. The argument that a monopoly of force is needed because without it we are unprotected, is contradicted by logic and actual practice. Police kill more civilians than criminals. Add to that all the civilians caged for non-violent actions. Neither does that argument address my argument that no such monopoly power exists with civilians, therefore they cannot delegate a power they do not possess. Therefore, govt. is illegitimate, violates rights instead of protecting them, and needs to be ended before it destroys our species (nuclear war?).

        • Michael MaharreySeptember 4, 2016 at 4:05 am #

          Well said. Now the $64,000 question for you is how to we get to where we are now to where you want to be?

          In my view, the Constitution provides a tool to begin to decentralize government, and to open people’s minds to resisting the centralized authority, a strategy not unlike the one Hans Hermann Hoppe suggested. That would certainly be a step in the right direction, no?

          To quote Rothbard, “Libertarians must come to realize that parroting ultimate principles is not enough for coping with the real world.”

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