If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
- James Madison, Federalist No. 51.
Recent presidents and supreme courts have been leaping over, tunneling under, and bolting around the restraints on government power set out in the United States Constitution. They ignore and routinely exceed its enumerated powers, and disregard the personal rights which it protects.
So we scratch our heads wistfully and search for the root cause of the problem. Is the constitution itself wanting in some respects, or is the tendency to grow government inherent in the human condition? Or, is the problem an amalgam of the two ideas, namely that the founders underestimated the ferocity with which American leaders of the last one hundred years would transgress the limits of the constitution. Perhaps they failed to erect strong enough barriers in the constitution to withstand the expansion of government by the likes of Wilson, FDR, LBJ, Nixon, Bush and Obama.
Perhaps modern politicos feel contempt for the small government envisioned by the founders and set out in the constitution. Those of that turn of mind may also be inclined to exploit ambiguities and loopholes in the Constitution itself, interpreting its words in light of their proclivity for enlarging their own power.
Those who make it to the top of any field rarely shrink from an opportunity for self-aggrandizement. Amoral American leaders have found a well-trodden road to enhance their power at the expense of the freedom of others, using the constitution as a fig leaf and even disguising their actions as patriotic or compassionate. (e.g., "It's for the children".)
Is the constitution itself to blame for exploding debt, unchecked regulations, vast expansions of government powers, or is it just human nature? The growth of government, starting almost once the ink was dry in 1787, has motivated any number of persons to fish around for some first causes. James Monroe, the sixth U.S. president, lamented that entropy was a natural process:
How prone all human institutions have been to decay; how subject the best-formed and most wisely organized governments have been to lose their check and totally dissolve. How difficult it has been for mankind, in all ages and countries, to preserve their dearest rights and best privileges, impelled as it were by an irresistible fate of despotism.
Jefferson said it even more succinctly: "The natural progress of things is for liberty to yield and government to gain ground." Judge Learned Hand, a brilliant and complex figure who served in the state and federal courts during the first half of the twentieth century (and who definitely has the best judge name of all time), opined,
I often wonder whether we do not rest our hopes too much upon constitutions, upon law and upon courts. These are false hopes.... Liberty lies in the hearts of men and woman. When it dies there, no constitution, no law, no court can save it... While it lies there it needs no constitution, no law, no courts to save it.
In Judge Hand's view, no constitution, no matter how well constructed, and no judiciary, no matter how wise, can substitute for a people with an internal conscience which disposes them to liberty and to respect the person and property of others. In fact, such persons don't need a constitution, because no one needs to tell them not to plunder their neighbors. Note that the constitution is written to restrain politicians from doing that to us.
If men were angels, said Madison, we would not need government. The problem of government, however, is that it devolves rather quickly into becoming an overlord, a tyrant. As it states in The Book of Common Prayer: "There was never anything by the wit of man so well devised, or so sure established, which in continuance of time hath not been corrupted."
So there you have it. The best system of government devised by the finest thinkers will only operate properly with a people already predisposed to liberty. No document will restrain those who are not intent on preserving their freedom. And any such system will deteriorate over time, giving way to tyranny and corruption. This is not a heartening prospect.
Given those realities, any attempt at drafting a durable constitution which intends to preserve liberty for the longest term possible, must be virtually bullet-proof, fool-proof, and tamper-proof. Quite a tall order.
In light of current developments in our governance, our founders didn't lock the U.S. Constitution down adequately to protect it from those who would either disregard it or would re-interpret it in light of their own political agendas. It is time to take a cold and clinical look at the limitations of our founding document to see where it is wanting in some respects. By underestimating the ravages of time and human nature, even though they were attentive to these dangers, our founders may have unwittingly invited the current state of affairs.
Herewith are seven (plus an extra) gaping, glaring, gargantuan omissions from the U.S. Constitution, with the benefits of 21st Century hindsight, and my suggested fixes:
1. The Constitution does not protect property rights.
The foundation of liberty is the ownership of property, and the most fundamental duty of government is to protect that ownership from all other claims. One of the clearest distinctions between countries in which it is possible to have a "civilized" life and one in which it is not, is the extent to which government protects property.
Why did our Bill Of Rights omit the most important right of all? Perhaps it was assumed that all property rights would be protected at the state level, and that current interference with property by the federal government would have been inconceivable.
We surely need protection for our property now, at both the federal and state levels. Federal encroachment on property has intensified on many fronts in the last few decades. The government now justifies the taking of property for wetlands violations, for environmental or endangered species preservation, for taxes, for possession an unapproved herb, and even for private development projects. State and local governments disrespect the privacy of property with just as much impunity, and they are sometimes worse.
The constitution has only a paltry protection for property rights, and that operates only when government takes land for a public purpose, called "eminent domain." Under the Fifth Amendment to the constitution, government is required to pay a fair compensation for any land so taken. It often does not do that, especially when it can deem the taking to only be partial, rather than entire.
THE FIX:
Make all land title "allodial", or absolute and total, rather than continue in our current "feudal" system of title records.
Under our current title system, an owner only gets a partial title to land when they receive a deed, but government retains a superseding power over the land, which allows it to take the land for taxes or other bad reasons. We imported this quirky land title system from England at our founding, which vests the ultimate ownership of land in the "lord", the government, rather than in the record owner. As incredible as it seems, government lord owns your land, and allows you to occupy it only so long as you pay the lord all of the fees he demands.
This system originated with William the Conqueror (in 1066), when he conquered England, and retained ultimate title to all land. He let a few barons have a lesser quantum of title to vast tracts of land, as long as they gave him compensation by use of their knights to fight battles for him. Over time, the system refined and developed. Feudal serfs could then have a leasehold tenancy, which required them to pay a percentage of crops from the land to the "landlord". I'm greatly simplifying a much more complicated and evolved system, but either the ultimate right to control the land is vested in the government or in you, the guy who thinks he owns it, but really doesn't.
Things have not changed much. We need to jettison this thousand year old system, and grant full, absolute "allodial" title to land, which cannot be re-taken by the government if you don't pay taxes, or there is a puddle on it that runs afoul of some environmental law, or if a greedy politician has been greased by a land developer who wants the land by eminent domain.
Right now, when you buy a house, your deed contains the statement that your ownership is "in fee simple". That means you are subject to a fiefdom, being a serf on your own land, a servant of the real lord, the government.
The fix is simple: Grant full allodial title to land, which will eliminate all kinds of mischief by government.
2. The Constitution does not protect family rights.
The founders would never have suspected, thought or dreamed that they would need to protect families from federal government intrusion on a personal level. That would have been as superfluous as including a clause to protect us from Martians.
Nonetheless, the feds have recently marched into the business of direct intervention into families, and in a massive way. The worst, but by no means the only one is by extravagant funding of state child protective services agencies, by writing their laws, and by maintaining a massive federal bureaucracy, called the "Administration of Children and Families", to ensure its continued tyranny in this area.
Since 1974, when Walter Mondale got the "Child Abuse Prevention and Treatment Act" passed into law, government now has prior rights over your children, just like feudal land title system gives them prior right to ownership in your land.
The U.S. Supreme Court has pretended that you have a fundamental interest in the care and upbringing of your children. However, that has given way to a competing principle: That the government has a "compelling state interest" in interfering with your family when its agents decide to do so. It must educate your children, it must protect your children from abuse and neglect, it must make you use car seats, use only toothbrushes with so many bristles, and so on.
In theory, in order to interfere with parental rights, the government must show that this compelling state interest requires them to override your rights if they are to take your children. In practice, courts let them do it virtually without stint.
This protection of children by government may seem sensible, until you consider the unintended consequences. In practice, all a social worker has to do to take your child legally is to - correctly or falsely, it doesn't matter - accuse you of neglect, of keeping your child out of government school, of spanking your child, of possessing a forbidden herb, of having the wrong religion, of not getting enough medical attention, of getting too much medical attention. Then, their goon squad enters your home, pries your screaming, terrified child right out of your arms at gunpoint, and kidnaps him or her. After a trial held after a year or longer, they terminate your parental rights and keep the child permanently.
These social workers are typically in their twenties, childless, clueless, and trained at a university which has taught them that you are part of a repressive patriarchy, and that your child should be liberated to be with his or her proper parent, the state. And they usually cannot be held liable, due to the hideous doctrine of government immunity, another dreadful legal abomination that we inherited from the English. (More on that below.)
Won't happen to you? Hah. At any one time, 500,000(!) children are in state custody in the United States, many of whom will never see their parents again.
The federal government also funds a massive educational bureaucracy which will take your child if thwarted. Try keeping your child in your care, instead of turning him or her over to your masters in the government school. Officers of the law will pay you a visit and file court action. The state child protective services will get involved. Life will not be good.
THE FIX:
We need a parental rights amendment to the U.S. Constitution, guaranteeing no government interference with families without a warrant, after proof of probable cause that a parent has committed an actual crime against the child. Thus, genuine abuse will be confronted.
This should not be the hackneyed, bogus, proposed parental rights amendment that has been circulated heavily by an organization called parentalrights.com. That one still defers to the 'compelling state interest' in the child, and thus does not impede the "child protectors". All they have to do to get around it is simply declare that in this case, it is necessary and compelling to take the child, and the court will defer to the experience of the agency.
We need the equivalent of "allodial title" to our children built into the constitution, so over-ambitious social workers cannot fulfill their kidnapping quotas on the backs of your family, like a police officer writing tickets on the last day of the month.
3. The Constitution does not eliminate immunity from prosecution for government agents.
A recent CNN article illustrates the problem:
An Arizona state senator involved in an apparent freeway-shoulder scuffle with his girlfriend was not detained because he has immunity from arrest while the legislature is in session, police said.
The girlfriend, not being a privileged tax eater, was not so lucky. She went to jail. When a government thug steals your land, your money, your child or your guns without due process, you will have a terrible time holding said thug accountable, because of the vile doctrine of immunity, which we inherited from our forbears across the pond.
In England, the king could do no wrong. He was the sovereign, and he was immune from lawsuits. So were his henchmen, er, assistants, since they worked for the king. Based on that historical precedent, sovereign immunity is now granted to judges and prosecutors and a number of other favored professions in this country. The immunity means that they cannot be sued for any action done in the official performance of their duties, no matter how dishonest, corrupt, or even in-your-face fraudulent that action is.
The argument for such protection has a superficial logic. We do not want judges tormented by lawsuits from every low-life perp whom he sentences to jail, because the defendant just didn't like the verdict. The judge or prosecutor would spend large amounts of time and resources defending against such suits, rather than attend to their duties.
In reality, judges and prosecutors hide behind this shield of immunity to defend bad behavior. Whenever there is no accountability you will find corruption. Since a judge cannot be held liable for anything done on the bench, they have no fear of over-reaching, imposing personal agendas, carrying out vendettas, taking bribes, and other somewhat ignoble acts. Only if the judge does something not related to the actual functioning of the office, is he or she subject to civil suit. This would be rare, such as if a judge slugged a defendant. Run-of-the-mill bribery and judicial bias, however, are totally protected.
There is almost no law in any jurisdiction granting this immunity. It has been illegally enacted by judges, acting as legislators, giving themselves this protection. Only the legislature can rightfully pass laws, but this has not deterred judges from doing so, up to and including those on the U.S. Supreme Court, from acting like one-man legislatures, and enacting immunity laws for themselves.
Judges have also extended a slightly less potent version of this immunity protection to a number of other favored insider professions, again without legislative permission, to include court guardians, social workers, psychologists on court evaluations, police officers, and to other legal and police-state categories. This version of immunity is called "qualified immunity", and requires dismissal of any civil lawsuit against a government agent acting in their official capacity in one of these professions, unless their conduct was clearly unconstitutional. It rarely is found to be so.
THE FIX:
Eliminate governmental immunity at every level of government, federal, state and local, for all but core functions of judicial work. Every other act by every other government operative, no matter in what capacity or profession, should be accountable to the public by way of a civil lawsuit.
Article V of the Massachusetts Declaration of Rights, written by John Adams in 1780, puts it perfectly:
All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all time accountable to them.
You just can't improve on that wording. Any persons living in Massachusetts should be asking, "How can ANY government employee have immunity, given that clear language?" Indeed.
4. The Constitution has no means to enforce violations of its terms.
With the rare exceptions of impeachment for treason or other "high crimes or misdemeanors", the constitution has no enforcement mechanism for violations of its terms. It is not self-enforcing at all. Impeachment is a lengthy, cumbersome and difficult remedy, and can only be used for the most serious infractions, such as Bill Clinton's relationship with an intern. Well, maybe that isn't a good example. Or maybe it is, illustrating that mundane transgressions can be the subject of ruthless witch hunts, while glaring treason and corruption often go unpunished.
In reality, the document needs a simple, clear procedure to enforce itself against any government agent who exceeds its enumerated powers, or interferes with rights protected under its amendments. Such conduct should be considered grounds for immediate termination from any government job, and a court should impose fines or even criminal penalties against any person or entity which engaged in such behavior.
The current civil rights law, set out in 42 U.S. C. Section 1983, is wholly inadequate to the task. It only stops a very limited range of constitutional violations, and the exceptions made by judges have nearly swallowed the rule.
THE FIX:
Add an amendment to allow simple enforcement in court of ANY violation of the clear words of the constitution by any government agent in any department, branch or agency, whether executive, judicial or legislative, and whether that violation consisted of exceeding an enumerated power, or by infringing on a right protected by the document.
After such an amendment was in place, Congress would only need to meet a few days each year. Bureaucrats would fear to tread before they took any action.
As Jefferson pointed out, government should fear the people, not the other way around.
5. The Constitution does not forbid a central bank.
The Federal Reserve System, usually called "The Fed", was the unrealized goal of Alexander Hamilton, and the most anti-Jeffersonian institution one can imagine. In theory, the Fed's twin mandates are to keep the currency and employment stable. Under its stewardship, the U.S. dollar has lost 97% of its value in a century and unemployment has soared. Someone must be unclear on the concept.
In essence - and this is greatly simplified - it creates money out of thin air by having one of its member banks, and then end users, borrow vaporous funds. Poof, there is money. If we did that, we would be in jail. When central bankers do this, they go to nice parties with rich bankers and important Beautiful People.
The Fed is unaccountable to anyone but the shadowy bankers whose interest it serves. It refuses to be audited, another ticket to jail if any other financial business likewise refused to be investigated by regulators. It could be, and probably is, running an operation about as ethical as the one run by Bernie Madoff.
At two other points in our history we have had central banks, but they were each dissolved in time. The current system has been in place since 1913, and was passed into law by Congress under quite suspicious circumstances on Christmas eve. Then president Wilson signed the bill into the law.
Where did the other 97% of the value of our money go? It did not just evaporate. Holders of dollar-denominated assets lost value to insiders due to inflation caused by the fed, and to those at the front end of the Ponzi scheme of money creation, just like Madoff's customers.
THE FIX:
First, audit the fed, and its handmaidens, Fannie May and Freddie Mac, the godzilla sized mortgage buyers. Then, eliminate them and never let another Bank of the United States arise again, via constitutional amendment. The Constitution already allows the federal government to "coin" money, meaning to use rare metals as a store of value and a medium of exchange. Handled properly, even a sophisticated economy can prosper on a metal standard. In fact, it absolutely cannot prosper if it is not on such a standard. No nation has.
The dollar should again be defined as a particular weight of gold and silver. History shows that works as a means of thwarting inflation, except when ruthless tyrants "clip" the coins or debase the metal in them. That would be hard to do in our technological society.
Lastly, anyone in charge of The Fed needs to stand trial for counterfeiting and for high crimes, for sinking our economy. Bernie Madoff needs some company in jail.
6. The Constitution does not limit spending, taxation and borrowing.
The Constitution does limit Congress to enumerated powers, and to spending money only for those purposes. However, Congress just acts as though there are no limits to spending, taxing and borrowing, by relying upon several clever work-arounds in the document itself, such as the "general welfare clause", the "necessary and proper clause", and the "commerce clause", among others.
This spending profligacy is not new. Madison himself had to admonish Congress that if can spend on anything it wants under the pretext of the "general welfare", then it negates the whole idea of enumerated powers. Why specifically list them as the only powers which Congress may exercise, if the "general welfare" clause expands its authority to an unlimited extent. Alas, Congress did not listen to Madison then nor to anyone now.
Congress has always been fond of spending, taxing and borrowing, but it could not indulge its wasteful ways as heroically in the past, as it has now been able to do in the last few decades. Wealthy and gullible Japan and China have lent us nearly a trillion dollars each, allowing Congress to live well beyond its means. The Fed has bellied up to the bar and thrown a lot of money around for deficit spending.
Congress had trouble collecting huge amounts of taxes in an earlier era, when there was no income tax. Presidents Taft and Wilson solved the problem, and ensured an unlimited flow of pilf to the federal government, via a constitutional amendment that for the first time allowed an income tax to be collected. The 16th Amendment states:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
Since that time, the Congress has extracted breathtaking amounts of wealth from us. But, unsated, it continued to spend and borrow trillions of dollars from our citizens which we will never be able to pay back, in the form of T-Bills, T-Bonds, savings bonds, and looting of the Social Security trust fund.
In sum, we have been on a decades-long spending binge, borrowing binge, taxing binge, and inflation binge. Our poor old body politic can't take it any more, and it shows.
THE FIX:
Congress won't respect the limits of the powers enumerated in the constitution, so it doesn't make sense to pass even more laws that it will also ignore. That is what modern Solons do when the existing laws fail, in order to make themselves feel better about failing to obey the laws that they already passed. "Stop us before we kill again," they seem to be saying. "We can't respect the law, so we should pass some more laws, and see if we might obey those." They will not, of course.
So, the fix cannot just be a new law or even a constitutional amendment. Congress doesn't care for such trifles, nor does just about anybody in Washington.
The only thing which such incorrigible delinquents understand is to take their toys away. So, the other two branches need to ignore the artifice of immunity claimed by the Members of Congress, prosecute them ruthlessly for exceeding their enumerated powers, and eliminate all perks, pensions, and even their salary for non-compliance. If it still keeps up, they can join the folks from the Fed in jail.
We are dealing with little brats, who need a good whoopin'. It is the only thing they will understand.
7. The Constitution Does Not Restrain the Fourth Branch of Government - the Administrative state.
Most of the accretions of government addressed in this essay fall under the category of the "administrative state", which has become a fourth branch of government unto itself. This branch is dangerous, because agencies combine the powers of all three constitutional branches into one unit, thus losing the checks and balances which the constitution took pangs to construct.
The so-called alphabet soup agencies that we are familiar with, such as the IRS, the FDA, the FCC, the FTC, the EEOC, the EPA, agencies inside HHS, and literally thousands of other players big and small, function like little dictatorships, because they are allowed to exercise all government functions which we constitutionally separate. Here is how it works:
Congress delegates its legislative power to an agency, by allowing it to write and pass laws which they call 'regulations', as though the agency was Congress. After the agency enacts its own laws, it starts imposing them on the victimized populace, using executive power. Then, if the people fail to obey the laws, the agency convenes its own pretend courts, dress up people like judges in black robes, and exact penalties as if they were actually courts. These 'courts' do not hew to our traditional notions of due process or the rule of law which citizens expect from actual courts.
For example, take the IRS. The Internal Robbery Society, like most other agencies, makes and enacts its own voluminous regulations as though it had the legislative power of Congress, which must be followed as though they were law. These regulations are not uniform or fair, and favor certain politically connected groups and disfavor others.
The IRS also administers the regulations, as would any executive agency, by making everyone file tax returns, collecting money, and tormenting the citizenry.
Finally, it exercises the judicial power by running a so-called "tax court", which Congress oversees. This is a fake court, not authorized under the judiciary power of Article III of the constitution. However, you would not know this, since the fake judges wear black robes. However, they steal the citizen's real money, and throw them into real jail for non-compliance.
Most agencies, on both the state and federal level, have devolved into these hybrid monsters, exercising the powers of all three branches, which our founders carefully intended to keep separate.
THE FIX:
End the judicial and legislative powers of agencies. It is bad enough that they exercise often unconstitutional executive power, but they must never be allowed to exercise the other two functions. In reality, most agencies would be wholly eliminated by an honest application of constitutional limits. Clipping their legislative and judicial wings would be a good start.
8. The Constitution does not provide for secession from the union.
Oh, c'mon. This issue was fully and finally decided back in 1865, at Appomattox Courthouse, and doesn't need to be reconsidered.
Yes, it does. It is the only escape hatch for responsible persons who simply want to live under responsible constitutional government, but cannot, because Congress, Courts and the executive agencies simply will not let them.
When the several states decided to cede certain powers to a central federal government, the states deliberately retained most of their powers, including the power to secede. Under the Tenth Amendment, all powers not specifically delegated to the central government are reserved to the states and the people. Since there is no clause concerning perpetual union in the constitution, or a prohibition on secession, the power to withdraw from the union is reserved to and may be exercised by the states.
THE FIX:
Let's put it right in the constitution in black and white: A clause which explicitly allows a state to peacefully withdraw from the union, by a two-thirds majority of its voting citizens.
Conclusion
We may now be seeing past errors in the Constitution with more clarity, which had been long dormant. We may now be experiencing the unraveling of a good experiment in nation building, because of treasonous modern leaders who refuse to respect the provisions of the constitution. Either way, we should consider the foregoing matters of grave concern, and set about repairing them before further damage is done.
