A Constitutional Fetish

Capitalism Magazine: Defending the Separation of Church and State: A Call to Liberals

At an emotional level, there are many liberals who would bristle at the claim that the separation of Church and State is but an empty slogan -- yet unless one rejects the Archbishop's root premise, there is no argument against his conclusion. The premise is that majority rules, or as the Archbishop puts it: "Lawmaking inevitably involves some group imposing its beliefs on the rest of us. That's the nature of the democratic process."

In fact, this nation was founded on the opposite idea: that each individual is sovereign, and that no tyranny, whether it be by king or democratic mob, can breach his sovereignty nor impose its beliefs on him.

This is absurd on its face and the evidence is apparent prior to even the very first day of the United States' operation. From the introduction to The Debates and Proceedings in the Congress of the United States Volume I on page 2:

Very soon after the Treaty of Peace, by which the Independence of the United States was recognized by the Government from which they had effected their separation, the want of a general superintending power over commerce, with the correlative power of taxation, was almost universally felt, and very generally deplored by the inhabitants of all the States, though not to the same extent in all.

It was easier to see the defect, and to feel the evils which flowed from it, than to provide the remedy. Intelligent citizens, however, soon busied themselves in devising the means of forming a Union, which should possess the requisite authority, and become the foundation of certain and durable prosperity.

My emphasis.

And just what did those masses think would necessarily occur when that "superintending power over commerce" would be imposed? Were they concerned with an individual's right to engage in business transactions provided they were peaceful and honest? I'm sure they felt as equally sanguine about the "power of taxation."

What about George Washington's letter to the public?

In Convention, September 17, 1787

SIR:
We have now the honor to submit to the consideration of the United States in Congress assembled, that Constitution which has appeared to us the most desirable.

The friends of our country have long seen and desired that the power of making war, peace, and treaties, that of levying money, and regulating commerce, and the correspondent executive and judicial authorities, should be fully and effectively vested in the General Government of the Union; but the impropriety of delegating such extensive trust to one body of men is evident: hence results the necessity of a different organization.

And pay attention to the very next part:

It is obviously impracticable in the Federal Government of these States to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained.

My emphasis.

That Constitution contained:

• Exemptions for Senators and House Representatives from arrest or questioning during their official activities.
  
• The Congressional power to "lay and collect taxes, duties, imposts, and excises;" to "provide for the common defense and general welfare of the United States;" "to regulate commerce with foreign nations and among the several States and with the Indian tribes;" "to coin money, regulate the value thereof;" "to establish post offices and post roads;" "to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries;" and the power to suspend the writ of habeas corpus "when, in cases of rebellion or invasion, the public safety may require it;" and so on.

In order to provide for the general welfare; to have an army and navy, post offices, and intellectual property laws, the federal government had to do the two things it could do: take from citizens and redistribute that wealth to others and prevent (forcefully, if necessary) other citizens from providing those services themselves. How any of that "ensures the individual's sovereignty" I do not know.

To ensure the individual's sovereignty, the Founding Fathers established a constitutional republic whose governing principle was the protection of individual rights. And though its representatives were elected democratically, democracy in its root sense was not a characteristic of this form of government. Rather its essence was the strict limits imposed by the principle of individual rights on the purview of the government and its elected officials.

[...]

Moreover they understood that individual rights are absolutes; you either have them in their entirety (regardless of anyone's vote), or you don't have them at all (e.g. if they can be forfeit to the "democratic" impulses of the mob at any time).

Copyright 2004-1997 Capitalism Magazine. All rights reserved.

Pfft. It's great Amit Ghate thinks this, but if the source of those representatives' power is through the people, then the corrupting influence of popularism will always manage to corrode individual liberties. And that corrosion will entail the destruction of the absolute of individual rights.

This doesn't even get into the very serious and very important problem of unanimous consent raised by Lysander Spoonder:

The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living [more than two hundred] years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the Constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but "the people" then existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves.

Emphasis on the original.

Posted by Drizzten at November 17, 2004 02:16 PM