Archive for constitution
Constitutional Restraints on Power
Posted by: | CommentsBy Edmund Opitz.
American political institutions presuppose certain convictions about human nature, the worth and prerogatives of persons, the meaning of life, the distinction between right and wrong, and the destiny of the individual. The Colonists came to their understanding of these matters as heirs of the intellectual and religious heritage of Christendom—the culture whose shaping forces sprang from ancient Israel, Greece, and Rome.
Given the consensus of two centuries ago—which regarded man as a sovereign person under God—it was only logical to structure government so as to expand opportunities for the exercise of personal freedom. The Constitution is clearly designed to maximize each individual’s equal right to pursue his own peaceful goals and enjoy the benefits and responsibilities of ownership.
The Declaration of Independence put into words what nearly everyone was thinking, that personal rights and immunities are ours because we are created beings, that is, we manifest a major purpose and intent of this universe. This implies a firm rejection of the alternative, which is to assume that we are the mere end products of natural and social forces, adrift in a meaningless cosmos. For if the universe is meaningless, then no way of life is any more meaningful than any other; in which case Power has no limits.
Our forebears had firm convictions about the purpose of life, and knew that in order to achieve life’s transcendent end Power must be limited: “Resistance to tyrants is obedience to God,” they declared. If life is viewed in these terms, how shall we conceive the proper scope and competence of government? What is its role in society? What functions should we assign to it?
Government is the power structure of a society. This is the first and most important fact about the political agency, that it has the legal authority to coerce. The second thing is to inquire whether the power wielded by government is self-sprung, or delegated by a more comprehensive authority than the merely political. Does government rule autonomously or by divine right; or is the real power located elsewhere and merely loaned to government? The Constitution is clear on this point; the power is in the people to lay down the laws which Power must obey. They set it up; they tell it what to do.
“We, the People of the United States,” reads the Preamble, “do ordain and establish this Constitution for the United States of America.”
Specific Limitations
The people empower an agency to do certain things for them as a nation, but if we isolate the provisions they laid down to limit government the prevailing intent or consensus which made the Constitution its political tool becomes clearer.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Amendment X
The people, furthermore, possess a body of rights by native endowment above and beyond those mentioned in the Constitution.
The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment IX
These sovereign people shall be free to worship, speak, and publish freely.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Amendment I
Congress shall make no law . . . abridging the freedom of speech. Amendment I
Congress shall make no law . . . abridging the freedom . . . of the press. Amendment I
Voluntary association is the corollary of individual liberty, and this is emphasized, as well as the right of petition.
Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble. Amendment I
Congress shall make no law abridging . . . the right of the people . . . to petition the Government for a redress of grievances. Amendment I
The old world divisions of mankind into castes and orders of rank are to be no more.
No title of nobility shall be granted by the United States. Article I, 9
Every citizen shall have a right to participate in the processes by which the nation is governed; and, should he desire to run for public office he shall not be put to a creedal test.
The right of the citizens of the United States to vote shall not be denied or abridged. . . . Amendments’ XV and X1X
No religious test shall ever be required as a qualification to any office or public trust under the United States. Article VI
Freedom to Trade; No Special Privilege
Commerce makes for a free and prosperous people, so restraints on trade shall be removed.
No tax or duty shall be laid on articles exported from any State. . . . Article 1, 9
No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another. Article I, 9
Progressive taxation violates the principle of equal treatment under the law—penalizes ability, and lowers productivity, so it is forbidden.
No capitation, or other direct, tax shall be laid, unless in proportion to the census. . . . Article I, 9
The public treasury shall be inviolate; government shall not confer economic privilege on some at the expense of others.
No money shall be drawn from the Treasury, but in consequence of appropriations made by law. Article I, 9
Personal privacy shall be respected and jealously guarded.
The right of the people to be secure in their persons, houses, papers, and effects . . . shall not be violated. Amendment IV
Conflict is a built-in feature of human action, and when collisions of interest do occur in society, the rights of the individual must be maintained.
No person shall . . . be deprived of life, liberty, or property, without due process of law. Amendment V
Nor shall private property be taken for public use without just compensation. Amendment V
Strings on the Military
In some nations, the civilian life is a mere appendage to the military. This will not happen here because civilians control the purse strings.
No appropriation of money (to raise and support military and naval forces) shall be for a longer term than two years. Article 1, 8
As a further safeguard against any future militarization of this nation, the civilian sector must have the means for defending itself.
The right of the people to keep and bear arms, shall not be infringed. Amendment II
In some countries, criminal proceedings are used to entrap citizens, whose guilt is assumed; the burden of proof is on them to show their innocence. Here, the innocence of the accused is assumed, until his guilt is proved. The law shall not reach backward to designate as criminal an action which until then was innocent.
No . . . ex post facto law shall be passed. Article I, 9
There shall be no Star Chamber proceedings.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. Amendment V
Protecting the Accused
The accused is protected against illegal imprisonment, and must be informed of the charges against him.
The privilege of the writ of habeas corpus shall not be suspended. Article I, 9
Punishment shall fit the crime; it shall not mean extinction of civil rights, forfeiture of property, or penalties against kin.
No bill of attainder . . . shall be passed. Article 1, 9
The accused is entitled to be tried by his peers.
. . . the right of trial by jury shall be preserved. Amendment VII
There is to be no forced self-incrimination.
Nor shall [he] be compelled in any criminal case to be a witness against himself. Amendment V
The rights of the accused are summarized:
1. . . . . a speedy and public trial, by an impartial jury;
2. Within the district wherein the crime shall have been committed;
3. to be informed of the nature and cause of the accusation;
4. to be confronted with the witnesses against him;
5. to have compulsory process for obtaining witnesses in his favor;
6. and to have the assistance of counsel for his defense. Amendment VI
Even when found guilty, the accused is protected.
1. Excessive bail shall not be required;
2. Nor excessive fines imposed;
3. Nor creel and unusual punishments inflicted. Amendment VIII
Treason
Treason is a crime against the nation, so serious that it must be defined with special care.
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. Article III, 3
The person judged guilty of treason is personally responsible for his crime, and therefore his family and kin shall not be punished.
No attainder of treason shall work corruption of blood. Article III, 3
Impeachment is a special case.
The Senate shall have the sole power to try all impeachments . . . and no person shall be convicted without the concurrence of two-thirds of the members present.
Judgment . . . shall not extend further than to removal from office, and disqualification to hold any office of honor, trust or profit under the United States. Article I, 3
A blind spot in the original Constitution is corrected.
Neither slavery, nor involuntary servitude, except as punishment for crime . . . Amendment XIII
No state shall . . . deny to any person within its jurisdiction the equal protection of the laws. Amendment XIV
The separate states are not wholly sovereign.
No state shall enter into any treaty . . . coin money . . . pass any law impairing the obligation of contracts. Article I, 10
The Method of Freedom
There is a strong penchant in human nature which impels people who feel strongly about something—a good cause, say—to group their forces and use the power of government to fasten their panacea on those they’ve been unable to persuade. The Constitution is a prime example of the limitations placed upon governmental power so that people with a cause to advance must resort to education, persuasion, and example only. This is the method of freedom, and a people committed to the method of freedom find the Constitution still an apt instrument for structuring a society which maximizes freedom and opportunity for all persons. It was designed to establish a national government internally controlled by checks and balances between the separate powers. And government was to be further limited by the Federal structure itself, in which the centripetal power of Washington was to be offset by the centrifugal powers of the separate states.
The Constitution was not a perfect document, but it carried the means of its own correction, and it did embody the consensus of the people for whom freedom was the prime political good. It was workable. And it will work again whenever a significant number of people have the force of intellect to comprehend sound ideas, and the force of character to make them prevail.
Originally published in The Freeman. This article originally appeared in the April 1978 Freeman and was reprinted in September 1987 to mark the 200th anniversary of the completion of the writing of the U.S. Constitution.
Read more from the Edmund Opitz Archive.
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Tags: constitution, Edmund Opitz, philosophy, power
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10 Things I Hate About Taxes #4: Privacy and Personal Income
Posted by: | CommentsThis is the fourth article in a series on taxation leading up to Tax Day, April 15.
The Fourth Amendment (IV) of the Bill of Rights says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
I read this amendment as saying that the only time “reasonable search” of my possessions – which includes information about me as well – can occur is when a warrant has been issued with probable cause. All other searches I am free to reject, for any reason whatsoever.
So how can the government claim the right to require me by force to give up information about my income?
If you don’t believe that, well then… the Ninth Amendment (IX) says:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The language here is a bit tricky, but stick with me… The word “enumeration” according to Dictionary.com means, “To count off or name one by one; [to] list.” So we should read this as, “Yo, America, you know those rights specifically listed? That’s not all, everything else is yours too.” In other words, your rights are assumed, not given by the government.
Let’s ask again, what right does the government have to my income, or even the information about my income? Constitutionally, the government does not have the right to force information about my income from me.
Of course, this didn’t stop Congress from trying on various occasions, and it didn’t stop them from passing the Sixteenth Amendment (XVI):
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.
Notice the wording at the end, “without regard to… enumeration.” So essentially, Congress at the time understood that the Constitution forbid them from doing this very thing. It was embedded in the Fourth and Ninth Amendments that this this right belongs to us, and yet no longer.
What happens when the Constitution is now inconsistent with itself? Do we really have a right to privacy, or not?
Or am I wrong to interpret the Constitution in this way? No wonder the repeal of the Sixteenth Amendment is so high on Ron Paul’s to-do list. If Congress has the power to repeal rights with the stroke of a pen, we are steps away from tyranny. Perhaps we are already there…
Thanks to Greg at The Holy Cause for inspiring part of this article.
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Tags: Bill of Rights, constitution, economics, taxes
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Unprecedented Obama Lust
Posted by: | CommentsThe media spent 35 times more airtime covering Barack Obama’s 2009 inauguration than the 2004 inauguration. Given, 2004 was an incumbent win, but even so this is entirely unprecedented in history. Yet, despite this gargantuan amount of coverage, the television ratings did not beat out Reagan viewership in 1981. Bias, anyone?
The level of Obama Lust throughout the country is sickening. USA Today reports a variety of streets and schools being renamed after a President whose only claim to history is that he’s the first African-American President. I admit, that is not a triviality by any means, but these acts scream premature. Even in St. Louis, where I used to live, they are re-naming old Delmar into “Barack Obama Boulevard.” Unbelievable!
This sentence about the public school disgusts me: “The children take such pride over the name being changed and knowing they represent such a strong individual.” Are you kidding me? No longer is the argument that the official represents the people (though they most certainly do not in reality), but that the people represent their glorious leader? How foolish.
The following video is extremely creepy. Ashton Kutcher and Demi Moore have compiled a number of celebrities “pledging allegiance” to the president. I call into question even “pledging allegiance to the flag,” much more pledging to any politician. It smacks of fealty oaths made to monarchs of old. But the end disturbs me the most: “I pledge to be a servant to our president, and all mankind.” Forget the notion that the government serves the people (which of course it doesn’t), the glorious dictator has arrived!
I had hoped that faith in the presidency could be seriously diminished by Obama because there is no way he can actually accomplish all the “change” he says we can believe in, but what concerns me now is that any failure that could be attributed to Obama will be instantly passed off as the fault of others. “Oh, it wasn’t Obama, it was the Congress… It wasn’t Obama’s policies, it was the Republicans… Obama was the good guy, the cabinet messed him up…”
Ironically enough, it will be the Democrat version of what so many conservatives said about Bush for soooooo long. Thankfully, many of them are finally coming around, but we have a long way to go until liberty thrives again in any political party. And I frankly have doubts if that can ever occur.
Meet the new boss, same as the old boss…
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Tags: bias, constitution, Obama
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Real Change Requires R[3VOL]ution
Posted by: | CommentsOn inauguration day of the new emperor (last Tuesday), the Young Americans for Liberty sponsored a nation-wide campus demonstration against the policies of Barack Obama. A number of students (including myself) participated in the event and had a great time. I reported to YAL National:
“At UT-Austin, we had a lot of success handing out our materials when we combined them with free pocket-Constitutions. That worked REALLY well. We gave away ALL that we had and many more that [belonged to] the Libertarian Longhorns group. About 1/4 of the giveaways resulted in new emails, but everyone who got one received a YAL flyer plus a homemade insert about our Facebook groups and next meeting.
We didn’t receive any harassment but also didn’t get any significant media attention. However, ABCNewsOnCampus came out to talk to us about Students for Concealed Carry on Campus. We had a nice interview with them. The Daily Texan (student newspaper) came out and took some pictures as well. We will have videos for you forthcoming.”
And now, the video is finally available (and has been featured on the YAL blog). Here it is care of Jeremy Hodes. You’ll see me a number of times hawking pocket-Constitutions in my Rothbard “Enemy of the State” shirt. Heheh.
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Tags: activism, Campaign for Liberty, constitution, Obama, Ron Paul, YAL
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GW’s Presidential Review
Posted by: | CommentsOver at The Humble Libertarian, Sir Messamore has put together an excellent post-mortem of the last eight years of accomplishments from the Oval Office.
Twice, the so-called conservative wing of the Republican Party was instrumental in electing Bush to office on promises of limited government and reform. It was the con of the century. Bush’s presidency has looked nothing like his campaign promises.
If we assign to the words “conservative” and “liberal” their conventional (and confused) meanings in modern American usage, with “conservative” meaning “someone who supports more limited government” and “liberal” meaning “someone who supports more active government,” then Bush is by far the least conservative and most liberal president we have had in decades, or possibly even our entire history as a nation. If we use these words in their classical sense, Bush is neither conservative, nor liberal. More apt descriptors would include: statist, imperialist, autocratic, warmongering, socialist, fascist, and on and on the list could go!
Listing feats of daring-do such as No Child Left Behind, massive deficit spending, and outright socialism, one must be dazzled by the brilliance of such “conservative values.”
Anthony Gregory adds to this analysis in his own way at the Campaign for Liberty website.
Not that any of us have greater “hope” in the Obamessiah by any means, but you get the idea…
By the way, Young Americans for Liberty will be holding demonstrations on campuses all across the country for our “Real Change Requires R3volution” event. Our campus libertarian group, the Libertarian Longhorns, will be joining them along with Students for Concealed Carry on Campus. I’ll have pictures tomorrow night, I hope…
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Tags: bush, conservatism, constitution, economics, Obama, war
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