Washington DC: It’s Not Government, It’s a Battlefield

MEME - this is not government (this is a battlefield

by Diane Rufino, Sept. 14, 2018

This is my latest meme. And I’m serious about its message.

DC politicians make me sick. They are quite literally the most wretched of human beings. They (mostly Democrats, let’s face it) refuse to act in the best interests of the country or of its citizens, but rather, act for pure political purposes only – for the benefit of their party, for the political power that its political elites will enjoy.

Why else would they make it their key political objective to impeach a president who has worked tirelessly to Make America Great Again. And it’s true, he has made America great again; he has the intuition, the insight, the political saavy, the conviction, and the dedication to enact policies to benefit the country and its people. His goal is not to redistribute American’s wealth and success to the rest of the world, but to keep and protect that wealth here. The other party cannot say the same. The president, despite the character flaws greatly exaggerated by the other side, has the decency to honor the promises he made on the campaign trail. His primary goal each day is to honor those promises to return to the people the grand notion that elected officials serve the people and that government works for them.

In what sensible universe would anyone make it their key political objective to take this honorable president out of office? The only answer that makes sense is that President Trump is pursuing policies that are so completely and directly in opposition to the agenda of the Democratic PARTY… not necessarily the people who identify as Democrats, but of the PARTY. Extrapolating from that, the only answer that makes sense is that the Democratic PARTY does not want the federal government to put America first.

The Democratic Party offers no path or vision for our country other than “impeach Trump.” In other words, the Democratic Party’s plan is to reverse the path of the Trump administration — to increase taxes, to increase burdensome regulations on businesses, to roll back the policies that have created hundreds of thousands of good jobs (jobs paying much more than minimum wage), to prostrate ourselves to world leaders and to give them support from the American taxpayer and without concern for the taxpayer, to undo trade deals and go back to exporting our wealth, to open our borders to uncontrolled illegal immigration, to flood illegals onto our entitlement programs and in our public education system….. in general, to overload our American systems so that they crash and true socialism or even worse arises out of their ashes.

The most important civic duty an American citizen has is to be informed and educated and responsible at the ballot box in order that our country has the integrity and strength for successive generations.

What is the key word in the phrase that once described our government — “government of the People, by the People, and for the People” ? — THE PEOPLE.

We can only have such a government if the political parties stop being so absolutely adversarial, if they stop being so critically opposite, and if they stop putting their power-thirsty interests and agenda above the interests of the people. We can only have a functional governance if they stop using the government as their battleground.

DC politicians and DC politics make me sick.

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The Social Compact and Our Constitutional Republic

CONSTITUTION - at the Philadalphia Convention

by Diane Rufino, Jan. 21, 2018 (first section only; other sections attributed to other authors)

I. INTRODUCTION

A Social Compact is an agreement, entered into by individuals, that creates some form of self-government and results in the formation of an organized society, the prime motive being the desire for protection and the performance of common functions to serve the community of individuals. To form an organized community, a surrender of some personal liberties is the trade-off.

Perhaps you may remember the Mayflower Compact from your days in grade school. You may remember that it was a document – you probably don’t remember what kind of document it was – that was drafted aboard the Mayflower, as it brought the Pilgrims to the shores of what would one day become Massachusetts. Well, the Mayflower Compact is actually quite significant. It was the first American document to establish a framework of self-government. It was perhaps the first the American Social Compact. The Compact was drafted by the Pilgrims as they sailed across the Atlantic and was signed on November 11, 1620 and became the governing document of Plymouth Colony.

I know that most people have never heard of the term “Social Compact” but I make the case here that this term is probably one of the most important terms to know and understand. The next American Revolution will be to wrestle power away from the federal government and to transfer it back to its rightful depositories, which are the States and the People themselves. The only way this will be possible is if the American people understand that the US Constitution is a social compact, was intended as such, was promoted as such, and was commonly referred to as such up until the end of the Civil War. All of the primary documents that explain the Constitution, refer to it, document its drafting, its adoption, and ratification characterize it as a “social compact.” Early Supreme Court decisions refer to it as a “social compact.” (See Chisholm v. Georgia, 1793; Calder v. Bull, 1798), and dozens of lower federal courts, as well as state courts, have done the same. When the colonies sought their independence from Great Britain, they articulated in the Declaration of Independence they believed that governments are products of social compacts (constitutions establish government authority, and set appropriate limits, all by the consent of the governed) and due to the “compact” or “contract” nature of that agreement, they had the right, under the Laws of Nature and God’s Law, to establish a new government, of their own design and suited to serve them accordingly (“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them….”)

Compact Theory, as will be discussed below, follows the same legal theories as contract law, which is one of the oldest areas of law. There are parties to a compact, there are assigned obligations and benefits, there are consequences for a breach, and there are remedies. In the case of the Constitution, the parties are the individual States. The government is NOT a party but is the creature – it being created by the Constitution. The federal government was “created” to serve the States – to perform those common functions that each state would have to perform alone but could be more efficient, more effective, and uniform, when performed for all. The federal government was created as an Agent for the States – against, to serve their interests, thus making it easy to form and remain together in the form of a Union (a “confederation” of sovereign states). Being the rightful parties to the compact (ie, the “contract”), the obligations and benefits are reserved to them only. The obligations are that each State delegate some their sovereign powers (listed in Article I) to the federal government for the good of the Union and respect that the federal government will govern supremely on those objects. And the benefits are those mentioned – the federal government would serve as the Agent, mainly providing safety and defense, dealing with foreign nations, ensuring regular commerce, and providing a common currency. A compact is a formal, and stable embodiment of the terms on which a group of people decide to live together in a community. It creates their government and represents the “consent of the governed.” The compact retains the same meaning and terms until the people agree to change it.

So, one benefit of a Social Compact is that the parties have a right and an expectation that the terms will remain the same. In the case of the Constitution, the government created is one of limited powers, with those powers expressly listed for each branch. All remaining government power is reserved to the States (both implied by the limited nature of the delegation of power and expressly by the Tenth Amendment). So when the federal government exceeds its powers under the Constitution and passes an unconstitutional law, establishes an unconstitutional policy, or renders an unconstitutional court “opinion,” the States, as the parties to the compact, have a RIGHT to ensure that the government exercises only those powers given it and to PREVENT such unconstitutional law, policy, or court opinion from being enforced on We the People. After all, when the government assumes powers not delegated to it, it naturally usurps them from their natural possessor, which is either the States or the People themselves.

James Madison explained this concept best, when he articulated the doctrines of Nullification and Interposition in his Virginia Resolves of 1798, which were written for the Virginia legislature in order to nullify the Alien & Sedition Acts, which were clearly unconstitutional, and prevent the residents of the state from being subject to them. The Virginia Resolves read: “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.” In his term “interpose,” he encompasses “nullification’ as well, which is the doctrine that says any law made without the proper authority (ie, an unconstitutional law) is automatically null and void and therefore unenforceable. Of course the federal government will never admit on its own that any of its actions are unconstitutional. It is up to the sovereign States to do that. In this manner, government can be kept in check.

It is Compact Theory that provides this level of protection against government tyranny for We the People.

Besides keeping the federal in check with regard to its rightful powers, States like South Carolina also believed it had the right to intervene when the government violated the basic nature and purpose of its being – to govern for the individual States equally; that is, not to operate government primarily for the benefit of certain States or certain regions over others.

When South Carolina, at the end of 1832, took strong action to oppose the high protective tariffs supported by Andrew Jackson’s administration, the Tariffs of Abomination (of 1828 and then 1832), which were exceedingly burdensome and crushing on the economy of the state, it looked to the compact nature of the Constitution for justification: On January 22, 1833, Senator John C. Calhoun, of South Carolina, submitted the following resolutions:—

Resolved, That the people of the several States composing these United States are united as parties to a constitutional compact, to which the people of each State acceded as a separate sovereign community, each binding itself by its own particular ratification; and that the union, of which the said compact is the bond, is a union between the States ratifying the same.

Resolved, That the people of the several States thus united by the constitutional compact, in forming that instrument, and in creating a general government to carry into effect the objects for which they were formed, delegated to that government, for that purpose, certain definite powers, to be exercised jointly, reserving, at the same time, each State to itself, the residuary mass of powers, to be exercised by its own separate government; and that whenever the general government assumes the exercise of powers not delegated by the compact, its acts are unauthorized, and are of no effect; and that the same government is not made the final judge of the powers delegated to it, since that would make its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among sovereign parties, without any common judge, each has an equal right to judge for itself, as well of the infraction as of the mode and measure of redress.

Resolved, That the assertions, that the people of these United States, taken collectively as individuals, are now, or ever have been, united on the principle of the social compact, and, as such, are now formed into one nation or people, or that they have ever been so united in any one stage of their political existence; that the people of the several States composing the Union have not, as members thereof, retained their sovereignty; that the allegiance of their citizens has been transferred to the general government; that they have parted with the right of punishing treason through their respective State governments; and that they have not the right of judging in the last resort as to the extent of the powers reserved, and of consequence of those delegated,—are not only without foundation in truth, but are contrary to the most certain and plain historical facts, and the clearest deductions of reason; and that all exercise of power on the part of the general government, or any of its departments, claiming authority from such erroneous assumptions, must of necessity be unconstitutional,—must tend, directly and inevitably, to subvert the sovereignty of the States, to destroy the federal character of the Union, and to rear on its ruins a consolidated government, without constitutional check or limitation, and which must necessarily terminate in the loss of liberty itself.”

South Carolina, in convention on November 24, 1832, adopted an Ordinance of Nullification which protested the constitutionality of the tariffs and stated that it would not provide the federal government with said tariff revenue. This would become the so-called Nullification Crisis of 1832. President Jackson threatened to invade South Carolina with federal troops and collect the revenue by force, but a compromise tariff bill was quickly reached in Congress which averted the crisis and which eventually lowered the tariff to pre-1828 levels. Nullification worked !! It prevented government abuse on the people and businesses of Virginia. (The tariff was discriminatory on southern states, particularly South Carolina and the Gulf States; the North did not pay tariffs because of the items that had duties attached; the North manufactured those items – that’s why the tariff was a “protective” tariff… it protected the industries and products of the North !!!!)

Another benefit of characterizing the Constitution as a Social Compact is that if the compact is violated, the State, as a party, has the option to resume its powers. Actually, it has the option of resuming those powers even if there is no violation, but merely because the compact is frustrating its “happiness.” We know the States viewed the Constitution as a compact when they debated it in their ratifying conventions, because all used that term. And we know they believed they had the inherent right to resume the powers delegated because three states, Virginia, New York, and Rhode Island, explicitly included Resumption Clauses in their ratification decisions. They reserved the right to withdraw from the compact. Other states had less strongly-worded reservations, but no state would have ratified the Constitution if they believed that in doing so they would be surrendering their newly-won independence.

When New York delegates met on July 26, 1788, their ratification document read, “That the Powers of Government may be resumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same.”

On May 29, 1790, the Rhode Island delegates made a similar claim in their ratification document. “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: That the rights of the States respectively to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same.”

On June 26, 1788, Virginia’s elected delegates met to ratify the Constitution. In their ratification document, they said, “The People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will.”

The most extreme benefit of a Social Compact is the right of a State, as a party, to secede from the compact.

In adopting her “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union,” on December 24, 1860, the Palmetto State explained her right to do so based on the compact nature of the Constitution.

“The people of the State of South Carolina, in Convention assembled, on the 26th day of April, A.D., 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right. Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue.

And now the State of South Carolina having resumed her separate and equal place among nations, deems it due to herself, to the remaining United States of America, and to the nations of the world, that she should declare the immediate causes which have led to this act…….

The parties to whom this Constitution was submitted, were the several sovereign States; they were to agree or disagree, and when nine of them agreed the compact was to take effect among those concurring; and the General Government, as the common agent, was then invested with their authority.

If only nine of the thirteen States had concurred, the other four would have remained as they then were– separate, sovereign States, independent of any of the provisions of the Constitution. In fact, two of the States did not accede to the Constitution until long after it had gone into operation among the other eleven; and during that interval, they each exercised the functions of an independent nation.

By this Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which necessarily implied their continued existence as sovereign States. But to remove all doubt, an amendment was added, which declared that 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. On the 23d May , 1788, South Carolina, by a Convention of her People, passed an Ordinance assenting to this Constitution, and afterwards altered her own Constitution, to conform herself to the obligations she had undertaken.

Thus was established, by compact between the States, a Government with definite objects and powers, limited to the express words of the grant. This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights.

We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.

In the present case, that fact is established with certainty. We assert that fourteen of the States have deliberately refused, for years past, to fulfill their constitutional obligations, and we refer to their own Statutes for the proof.

The Constitution of the United States, in its fourth Article, provides as follows: ‘No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up, on claim of the party to whom such service or labor may be due.’

This stipulation was so material to the compact, that without it that compact would not have been made. The greater number of the contracting parties held slaves, and they had previously evinced their estimate of the value of such a stipulation by making it a condition in the Ordinance for the government of the territory ceded by Virginia, which now composes the States north of the Ohio River.

We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assume the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution; they have denounced as sinful the institution of slavery; they have permitted open establishment among them of societies, whose avowed object is to disturb the peace and to eloign the property of the citizens of other States. They have encouraged and assisted thousands of our slaves to leave their homes; and those who remain, have been incited by emissaries, books and pictures to servile insurrection.

For twenty-five years this agitation has been steadily increasing, until it has now secured to its aid the power of the common Government. Observing the forms of the Constitution, a sectional party has found within that Article establishing the Executive Department, the means of subverting the Constitution itself. A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that ‘Government cannot endure permanently half slave, half free,’ and that the public mind must rest in the belief that slavery is in the course of ultimate extinction.

The guaranties of the Constitution will then no longer exist; the equal rights of the States will be lost. The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy.”    [For the full Declaration, go to: http://avalon.law.yale.edu/19th_century/csa_scarsec.asp ]

Note that South Carolina’s real issue with the federal government was the tariff issue; it was the immediate issue. Lincoln promised to support a new protective tariff (which Buchanan has just signed it in his waning days) which would elevate the tariff to its highest levels ever. But legally, the federal government has the authority under the Constitution to erect such tariffs. South Carolina agreed to that authority in adopting the document and joining the Union. It very well could not try to make a legal argument for secession based on its opposition to the high discriminatory tariff. But the slavery issue is a constitutional issue. And it represented an actual, palpable breach of the compact which would justify its withdrawal from the union.

In adopting the Constitution, the states understood that they would be free to leave the Union, as situations dictated. After all, they left the Union established by the Articles of Confederation to establish a new Union under the Constitution. But that Union was different and only those states that adopted would be members of that new Union and bound by the Constitution. Article VII states that 9 states needed to ratify the Constitution in order for it to go into effect.

So, to recap, the particular benefits of a Social Compact lie in the remedies it provides the parties should the compact be violated, or breached. The consequences for a breach of the compact are simple: If a State breaches, the others, acting alone, can decide whether to consider the compact broken which then would allow it to be relieved of its obligations (ie, the State would no longer be bound by the Constitution). If the federal government attempts to assume powers not delegated to it, the States have a right, even an obligation, to identify that unconstitutional act and prevent its enforcement.

And an extreme remedy is always available – the right of rescission. Rescission is the right of one of the parties to rescind or cancel the contract for cause. It is the right of a party, if there are many parties, to withdraw from the agreement. This is the remedy of secession. The abrogation, or cancellation of a contract, or withdrawal or secession from a compact, is a remedy designed to restore the parties to the positions they would have been in if no contract or compact had ever been formed. As explained above, once a State decides to secede, it resumes all the powers it had delegated away and resumes its natural station under the Laws of Nature. It is then free to establish a new form of government that suits is purposes. As to the remaining States, they are free to remain in the compact, which at that point would be a new Union. That Union is free to remain on the same terms and under the same conditions.

The Constitution was roundly understood and recognized as a Social Compact up until the years leading to the Civil War. Again, all our founding documents and primary documents explaining the Constitution and referring to it characterize it as a Social Compact. But something happened in the years when South Carolina started to become contentious with regards to the high protective tariffs. The protective tariffs had became a hallmark of the Whig Party platform and then the Republican Party platform. Leading Whig (House Speaker, then Senator) Henry Clay initiated a new government plan to help businesses. It was called the “American System” and included protective tariffs and internal improvements. The money raised by high protective tariffs would be used not only to fund the government (about 1/3 of the revenue), but it would also go to the North, for internal improvements to further industrialize those states. In other words, the protective tariffs, according to the South (and particularly South Carolina, led by Senator John C. Calhoun), were nothing more than a government scheme to plunder the wealth of the South and transfer it to the North for its benefit. When the government realized that South Carolina was not playing along smoothly, was bucking the system, and was threatening to even leave the Union over the tariff situation (perhaps other Southern States would follow suit), and they had just causes under compact theory, suddenly the notion of the Constitution as a Social Compact became a liability. All of a sudden, political leaders began asserting that the Constitution was not a Social Compact, including Senator Daniel Webster and then Abraham Lincoln himself. Lincoln came up with a new theory of the Constitution – based on a treatise on the Constitution, Commentaries on the Constitution of the United States, written in 1833 by then Supreme Court associate Justice Joseph Story. He would classify the Constitution as establishing a “perpetual Union” that the States had fully intended to create. [It should be noted that Story’s treatise was highly criticized by leading constitutional experts of the day – including Henry St. George Tucker, Sr., John Randolph Tucker, Abel Parker Upshur, James Kent, and John C. Calhoun. Calhoun was revered as an expert on the Constitution and perhaps even more “Jeffersonian” than Jefferson himself.] In 1833, after spending almost all of his life referring to the Constitution as a compact, leading politician and powerful orator (a “thundering” orator), Senator Webster took to the Senate floor and delivered a speech expressly denouncing the Constitution as a compact. [That speech, by the way, was given in response to the Resolutions introduced on Jan. 22 by Senator John Calhoun (shared earlier) to explain why South Carolina nullified the federal tariff].

It should be noted that years earlier, Senator Webster’s position was quite different: “But, sir, there is a compact, and no man pretends that the generation of today is not bound by the compacts of the fathers. A bargain broken on one side is a bargain broken on all; and the compact is binding upon the generation of today only if the other parties to the compact have kept their faith.” Works of Daniel Webster

If the Constitution is not characterized as a Social Compact, in total disregard of history and ignoring all of our historic documents, then we do not have the relationship between the government and the States, and the government and the People, as the States and our Founders intended. Liberty would not be safe. If is not a Social Compact, then the government is just one more group of people living in this broad general geographical territory. If we reject the status of the Constitution as a Social Compact, as liberals and progressives would like (because they favor a strong central government with plenary powers), then we must get used to the permanent notion that the federal government as the creature is more powerful than its creators. The powers “reserved to the States” would be usurped whenever the government deems it beneficial to do so. The powers surrendered to it by the States and by the People could not be resumed by them and the government would have total control over any object and over any individual or group it wishes. It would effectively mean the end to federalism – the only option left to limit the federal government. It would leave the States at the mercy of the intentions of DC politicians. The government would have a total monopoly over the meaning and scope of its powers (sorta like the monopoly it has now!) and our rights and the States’ rights would be exercised only at the good graces and designs of the federal government.

Lastly, if the Constitution is not characterized as a Social Compact, then the States do not have the remedies articulated earlier. Then the States truly have no option to secede and Lincoln’s Union will have become a reality – one that is perpetual. It will be perpetual because the government now has the right to seek its own longevity; under Compact theory, government only exists as long as it rightfully protects the rights of the individuals and serves them well.

II. DEFINITION & ORIGIN of the SOCIAL COMPACT (This section comes from: Martin Kelly, “The Social Compact,” ThoughtCo.)

The term “social contract” refers to the belief that the state exists only to serve the will of the people, who are the source of all political power enjoyed by the state. The people can choose to give or withhold this power. The idea of the social contract is one of the foundations of the American political system.

The term “social contract” can be found as far back as the writings of Plato. However, English philosopher Thomas Hobbes expanded on the idea when he wrote his classic, Leviathan, which was his philosophical response to the English Civil War. In the book, he wrote that in the earliest days there was no government. Instead, those who were the strongest could take control and use their power over others at any time. Hobbes’ theory was that the people mutually agreed to create a state, giving it only enough power to provide protection of their well-being. However, in Hobbes’ theory, once the power was given to the state, the people then relinquished any right to that power. In effect, that would be the price of the protection they sought.

Jean Jacques Rousseau and John Locke each took the social contract theory one step further. Rousseau wrote The Social Contract, or Principles of Political Right, in which he explained that the government is based on the idea of popular sovereignty. The essence of this idea is that the will of the people as a whole gives power and direction to the state. John Locke also based his political writings on the idea of the social contract. He stressed the role of the individual and the idea that in the ‘State of Nature,’ people are essentially free. However, they might decide to form a government to punish other individuals who go against the laws of nature and harm others.

It follows that if this government no longer protected each individual’s right to life, liberty, and property, then revolution was not just a right but an obligation.

The idea of the social contract had a huge impact on the Founding Fathers, especially Thomas Jefferson and James Madison. The U.S. Constitution itself starts with the three words, “We the people…” embodying this idea of popular sovereignty in the very beginning of this key document. Thus, government that is established by the free choice of its people is required to serve the people, who in the end have sovereignty, or supreme power to keep or get rid of that government.

III. THE SOCIAL COMPACT and CONSTITUTION REPUBLICS (This section comes entirely from the Constitution Society, 2007)

Between 1787 and 1791 the Framers of the U.S. Constitution established a system of government upon principles that had been discussed and partially implemented in many countries over the course of several centuries, but never before in such a pure and complete design, which we call a constitutional republic. Since then, the design has often been imitated, but important principles have often been ignored in those imitations, with the result that their governments fall short of being true republics or truly constitutional. Although these principles are discussed in civics books, the treatment of them there is often less than satisfactory. This section will attempt to remedy some of the deficiencies of those treatments.

The Social Contract and Government –

The fundamental basis for government and law in this system is the concept of the social contract, according to which human beings begin as individuals in a state of nature, and create a society by establishing a contract whereby they agree to live together in harmony for their mutual benefit, after which they are said to live in a state of society. This contract involves the retaining of certain natural rights, an acceptance of restrictions of certain liberties, the assumption of certain duties, and the pooling of certain powers to be exercised collectively.

The social contract is very simple. It has only two basic terms: (1) mutual defense of rights; and (2) mutual decision by deliberative assembly. There are no agents, no officials, that persist from one deliberative assembly to another. The duties of the social contract are militia. There may be customs that persist from assembly to assembly, such as customs for due notice, parliamentary procedure, judicial due process, and enforcement of court orders by militia. This second term could be called the constitution of society, but it precedes a constitution of government and should not be confused with it.

There is also a constitution of nature that precedes both the constitution of society and the constitution of government. It is also convenient to speak of a constitution of the dominion that follows the constitution of society and precedes the constitution of government. It arises after a society is created (by adopting the social contract), and after it acquires exclusive dominion over a well-defined territory. That is when we get things like a right to remain at and to return to one’s birthplace, which makes no sense for a society with no territory (such as nomads).

A constitution of government, such as the Constitution of 1787, is the next step in the development. It is to establish institutions, offices, procedures, duties, and structures that persist from one assembly to another that are not just customs. It is at that point that we begin to get things like laws, and paid agents and officials, whose jobs continue beyond transient assemblies. We also get taxes, standing armies, and professional law enforcers. Such pooled powers are generally exercised by delegating them to some members of the society to act as agents for the members of the society as a whole, and to do so within a framework of structure and procedures that is a government. No such government may exercise any powers not thus delegated to it, or do so in a way that is not consistent with established structures or procedures defined by a basic law which is called the constitution.

While it is possible in principle for such a constitution to consist entirely of a body of unwritten practices, traditions, court decisions, and long-established statutes, in practice no such basic order can be considered secure against confusion or corruption if it is not primarily based on a written document, which prescribes the structure, procedures, and delegated powers of government, and the retained rights of the people, and which is strictly interpreted according to the original intent of the framers.

Although in principle the procedures may allow for the direct adoption of legislation by vote of the people, this is both impractical and potentially dangerous, especially to the rights of minorities, so that it is generally best that most legislation require approval at some point in the legislative process by a deliberative assembly, a body of elected representatives rather than by direct popular vote, and that any such legislation be subject to judicial review, whereby legislation not consistent with the constitution can be voided. Such a form of government is called a republic, as distinct from a democracy, in which all legislation is adopted solely by direct popular vote. And if it operates under a well-designed constitution, it is a constitutional republic.

It is important that the deliberative assembly fairly represent all the competing interests of the people, so that the concerns of minorities can be weighed and not ignored. But fair representation is insufficient if deliberation is not effective in analyzing and anticipating all the consequences of any decisions that might be made. The consent of the majority should be necessary for action, but that consent should never be sufficient for action.

Origins of the Social Contract –

Critics of social contract theory argue that almost all persons grow up within an existing society, and therefore never have the choice of whether to enter into a social contract. Not having a choice, they say, makes any such contract void.

The original proponents of the social contract theory, John Locke, David Hume, and Jean-Jacques Rousseau, answered these critics, but not in a way that is entirely satisfactory. To understand how the social contract comes about, we need to look at the kinds of contract that prevail during each stage in the development of a human being in society.

Each of us begins life under the terms of a special kind of social contract called a filial contract, between a child and his parents, and by extension to his siblings. That contract is established at the moment of bonding between parents and child following birth, and the terms of the contract are that the child will provide the parents certain pleasures that come with parenthood, particularly the satisfaction of helping to form a happy and admirable adult, and support for the parents in their later years, and in turn receives their love, support, guidance, and protection during childhood.

Although a filial contract can exist in a family that is isolated from any larger society, when the parents join a society, they pool their rights and duties as parents with other members of that society, and thereby become agents of the larger society in the raising of their own children, and accountable to that larger society for doing so properly.

As a child grows, it encounters other members of the larger society, usually beginning with other children. Whenever any two or more individuals meet with the understanding and expectation that they will live together in harmony and not fight with one another using any available means, they are establishing a social contract among themselves. In most cases they will be contracting with persons who have already established such a contract with still other persons, so that the terms of the contract are not only to live in harmony with those in direct contact, but also with all those with whom each of the parties is already engaged in a social contract, and by extension, to all others that those are in a social contract with, and so on. In other words, the social contract is transitive: if a is in a social contract with b, and b with c, then a is in a social contract with c. In this way each of us is bound under a social contract with all the other members of the society, most of whom we have never met.

As a person makes the transition from childhood to adulthood, his obligations change to match his abilities, and the filial contract gives way to the larger social contract and obligations to larger communities at the local, provincial, national, and global levels.

Of course, the social contracts of several societies may not extend to one another, giving rise to tribes or nations, whose members are bound by social contract within their membership, but are in a state of nature with respect to one another. If that state of nature involves active conflict, whether at the individual, tribal, or national level, it is said to be a state of war.

Breaches of the Social Contract —

Although the situation of there never having been a social contract is a fairly simple one, the situation of either deceiving another into thinking there is a social contract between them, or of entering into a social contract and then violating its terms, can be much more complicated, and much of law and government is concerned with dealing with such situations.

In his treatment of the subject, Locke tended to emphasize those violations of the social contract that are so serious that the social contract is entirely broken and the parties enter a state of war in which anything is permitted, including killing the violator. Today we would tend to place violations on a scale of seriousness, only the most extreme of which would permit killing. Some would even go so far as to exclude killing for any transgression, no matter how serious, but that extreme view is both unacceptable to most normal persons and subversive of the social contract itself, which ultimately depends not on mutual understanding and good will, but on a balanced distribution of physical power and the willingness to use it. Sustaining the social contract therefore depends in large part on so ordering the constitution and laws as to avoid unbalanced or excessive concentrations of power, whether in the public or the private sector.

Checks and Balances –

The framers of the U.S. Constitution addressed the problem of avoiding unbalanced or excessive concentrations of power in government by adopting a constitution in which legislative, executive, and judicial powers are largely divided among separate branches, with each having some power to check the abuses of the others. Legislative powers were further divided between two legislative bodies. Some powers were delegated to the central national government, which others were reserved to the component states or the people.

Around the end of the 19th century, however, it became increasingly apparent that excessive and unbalanced concentrations of power in the private sector could subvert the system of checks and balances in government, and the first anti-trust laws were passed to try to provide a check on those undue influences. Unfortunately, such legislation has not been entirely effective, and we now face a situation in which to an intolerable degree the real powers of government are being exercised not by constitutional bodies but by secret cabals based in the private sector but extending throughout government, cabals which are increasingly coherent and increasingly abusive of the rights of the people, including the right to have government be accountable to them and not to a power elite. The continued constitutional development of this society will therefore require the development of a new, more sophisticated system of checks and balances that extends throughout the private sector as well as the public and does not entirely rely on market forces.

Much of the abuse that has developed arises from the assumption by the national or central government of powers not delegated to it under the Constitution, and the erosion of the powers of the States with respect to that central government. Some of those powers are arguably best exercised by the central government, but without constitutional authority even the exercise of reasonable powers becomes an abuse and leads to an escalating cycle of abuses as more and more people resist such intrusions, creating a crisis of legitimacy not only for those unconstitutional activities but for the constitutional ones as well. If government is to be brought into compliance with the Constitution, then there will have to be a carefully planned program of repealing or overturning unconstitutional legislation and official acts, combined with a number of amendments that will provide the needed authority for legislation and acts which are best exercised by the central government, and the re- enactment of legislation based on such amendments. That will leave a difficult problem of dealing with all those actions conducted without constitutional authority before the amendments are adopted. Making the amendments retroactive is not permissible under constitutional principles, which exclude not only ex post facto laws but ex post facto amendments as well.

Of Rights Natural and Constitutional –

Under the theory of the social contract, those rights which the individual brings with him upon entering the social contract are natural, and those which arise out of the social contract are contractual. Those contractual rights arising out of the constitution are constitutional rights. However, natural rights are also constitutional rights.

The fundamental natural rights are life, liberty, and property. However, it is necessary to be somewhat more specific as to what these rights include. Therefore, constitution framers usually expand them into such rights as the right of speech and publication, the right to assemble peaceably, the right to keep and bear arms, the right to travel over public roadways, and so forth. The exercise of such natural rights may be restricted to the extent that they come into conflict with the exercise of the natural rights of other members of society, but only to the minimum degree needed to resolve such conflict.

Such natural rights are inalienable, meaning that a person cannot delegate them or give them away, even if he wants to do so. That means that no constitutional provision which delegated to government at any level the power to take away such rights would be valid, even if adopted as an amendment through a proper amendment process. Such rights apply to all levels of government, federal, state, or local. Their enumeration in the constitution does not establish them, it only recognizes them. Although they are restrictions on the power of government, the repeal of the provisions recognizing them would not remove the restrictions or allow the delegation of any power to deny them. The people do not have that power, and therefore cannot delegate it to government.

Yet constitutions recognize the power to deprive persons of their rights under due process of law. Strictly speaking, a person may not be deprived of such rights in the sense of taking them away. Natural rights are never lost. Their exercise can, however, be restricted or, to use the proper legal term, disabled. While some might question the practical distinction between losing a right and having it disabled, that distinction is important. A right which is disabled under due process may also be re- enabled by the removal of that disability, and the disability is removed if the social contract is broken and persons return to the state of nature.

Due process is not defined in the written U.S. Constitution, which points out the fact that the constitution consists not only of the written document itself, but the body of court precedents, legal definitions and traditions, and prevailing civic processes as of the date the written document was ratified, which is called pre-ratification Common Law. It also includes the commentaries and records of the debates of the framers and ratifiers insofar as they provide guidance on how to interpret the provisions of the written document. The constitution is further expanded to include the body of court precedents since ratification which interpret its provisions, called post-ratification common law, but only insofar as those court precedents are consistent with the written document, pre-ratification Common Law, and the original intent of its framers and ratifiers.

Certain rights, therefore, such as the rights of due process and the right to vote, are contractual. They have no meaning in a state of nature, only within the context of a civil society. And they are defined within Common Law rather than in the written Constitution.

Due process requires, among other things, that any disablement of a right be done only by a court of competent jurisdiction in response to a petition to do so, and after arguments and evidence are heard from all sides to support or refute the granting of such petition. The only rights which may be disabled by statute and without a specific court proceeding are the rights of majority, or adulthood. Common Law recognizes that persons are born with disabilities of minority, and constitutions and laws typically define some age at which those disabilities are removed, such as age 18 in the United States for purposes of voting, although it may allow for such disabilities to be removed earlier, or retained past the usual age of majority, upon petition to do so. Due process therefore requires that each and every right which is to be disabled be argued separately on its merits, and the ruling or sentence of the court explicitly disable each such right.

This requirement therefore comes into conflict with legislation which prescribes the disablement of certain rights for persons convicted of certain types of crimes, such as the right to vote or to keep and bear arms, without that disablement being made an explicit part of the sentence or the sentencing hearing. Such legislation must be considered unconstitutional, for even though there may be due process in the case which results in the explicit disablement of the rights to certain liberties or properties, those disablements are openly stated and argued, and the statutory inclusion of other disablements that are not made explicit or separately argued is a denial of due process.

Duties under the Social Contract –

While a constitution prescribes the legal rights of individuals and the powers of government, the social contract also includes certain duties which members assume upon entry. Those duties include the duty to avoid infringing on the rights of other members, to obey just laws, to comply with and help enforce just contracts, to serve on juries, and to defend the community.

It is important to recognize that although individuals have a right of self-defense in the state of nature, when they enter into society under the social contract, the pooling of that right transforms it into a duty to defend the community, and therefore to risk or sacrifice one’s life, liberty, or property if such defense should require it. The right of self-defense is no longer supreme, although it survives the transition to society as a duty to defend oneself as part of the community. Pacifism in the face of mortal danger to oneself or others is therefore not consistent with the social contract, and persons who insist on that position must be considered not to be members of society or entitled to its benefits, and if they live in the same country, have the status of resident aliens.

This duty implies not only individual action to defend the community, but the duty to do so in concert with others as an organized and trained militia. Since public officials may themselves pose a threat to the community, such militias may be subject to call-up by officials, but may not be subject to their control except insofar as they are acting in accordance with the constitution and laws pursuant thereto, and in defense of the community. Since any official designated to call up the militia may be an enemy of the constitution and laws, and may fail to issue a call-up when appropriate, militias must remain able to be called up by any credible person and independent of official control.

Another important duty is jury duty. Since officials may be corrupt or abusive or their power, grand jurors have the duty not only to bring an indictment upon evidence presented to it by a prosecutor, but to conduct their own investigations and if necessary, to appoint their own prosecutors to conduct a trial on the evidence. Petit jurors have the duty to not only follow the instructions of the judge to bring a verdict on the “facts” in a case, but to rule on all issues before the court, overriding the judge if necessary. No matter how despicable an accused defendant might be or how heinous his acts, they have the duty to find that accused not guilty if the court lacks jurisdiction, if the rights of the accused were seriously violated in the course of the investigation or trial, or if the law under which the accused is charged is misapplied to the case or is unconstitutional; and to find the law unconstitutional if it is in violation of the constitutional rights of the accused, if it is not based on any power delegated to the government, if it is unequally enforced, or if it is so vague that honest persons could disagree on how to obey or enforce it. Since most jury instructions now discourage petit juries from exercising that duty, almost all convictions brought by such juries in which there was an issue in law must be considered invalid, due to jury tampering by the court.

Governmental Powers and Duties –

Some critics of social contract theory argue that there are some powers of government that are not derived from powers of the people or delegated to the government by them. However, a careful analysis will show that all powers exercised by government derive either from the people as a whole, or from some subset of the people, or from one person, and that only the first are legitimate. The power to tax? Persons in the state of nature have the power to tax themselves, although they would not ordinarily think of it that way.

Most written constitutions prescribe the powers delegated to government, but are not always explicit about the duties. It is implied that the government has the duty to exercise its powers wisely and pursuant to the purposes of the social contract. But some persons argue that the power to act is also the power not to act. Could the government choose not to exercise its power to conduct elections, or to defend the country, or to maintain a sound currency, or to organize and train the militias of each state? No. Except in case of emergency, and only for the duration of the emergency, government must exercise the powers delegated to it according to their purposes to the best of its ability. That is its duty. Just as it is the duty of every member of society to exercise his or her powers in service of the community.

References: Ernest Barker, ed., Social Contract, Oxford U. Press, London, 1960. Contains the essays: John Locke, An Essay Concerning the True Original, Extent, and End of Civil Government; David Hume, Of the Original Contract; Jean-Jacques Rousseau, The Social Contract.

James Madison, Notes of Debates in the Federal Convention. The definitive record of the proceedings of the Constitutional Convention of 1787.

James Madison, Alexander Hamilton, John Jay, The Federalist.

Bernard Schwartz, The Roots of the Bill of Rights, Chelsea House, New York, 1980.

Leonard W. Levy, Original Intent and the Framers’ Constitution, 1988, Macmillan, New York. Scholar examines “original intent” doctrine and its alternatives.

Stephen P. Halbrook, That Every Man Be Armed, 1984, Independent Institute, 134 98th Av, Oakland, CA 94603.

Clarence Streit, Atlantic Union Now, 1962, Freedom & Union Press, Washington, DC.

**** The Constitution Society gives its permission for this last section (“The Social Compact & Constitutional Republics”) to be copied with attribution for noncommercial purposes.

This post includes a compilation of two previous works:
I. My original composition

II. The Intro about Social Compact: Martin Kelly, “The Social Compact,” ThoughtCo., June 26, 2017. Referenced at: https://www.thoughtco.com/social-contract-in-politics-105424

III. “The Social Compact & Constitutional Republics,” 2007 Constitution Society. http://www.constitution.org/soclcont.htm

Other Resource: “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union” (The Avalon Project; Yale Law School) — http://avalon.law.yale.edu/19th_century/csa_scarsec.asp

JUDICIAL ACTIVISM: Obstruction of Construction

JEFFERSON - versus Hamilton

by  Diane Rufino, September 21, 2017

In Honor of the 230th Anniversary of the US Constitution, and also to help promote Brion McClanahan’s latest book, HOW ALEXANDER HAMILTON SCREWED UP AMERICA, I wanted to post this important History Lesson —

The history surrounding the first Bank Bill (to charter a national bank), proposed to President Washington by his Secretary of the Treasury, Alexander Hamilton shows us exactly why the Federal Judiciary has become the greatest usurper of powers belonging to the States and to the People. It is an important lesson on constitutional interpretation.

Why is it important that we pay close attention to constitutional interpretation?  Because when the courts don’t bother to consult the proper original documents and commentary as authority on the meaning and intent of the provisions of the Constitution, and/or when they make the decision to disregard that history and that critical information (any student of contract laws knows the strict laws of construction that guide a contract’s interpretation), then any opinion in contradiction to that history and such commentary necessarily means that the judiciary has assumed power for the federal government that it was not intended to have. And where do those additional powers come from?  From the original depositories of government power, the People and then the States.

HISTORY –

In 1788, the US Constitution was adopted by the requisite number of states and hence, the government it created would go into effect. Later that year, elections were held, George Washington was elected our first president (and men like James Madison elected to the first US Congress), and the following year, 1789, the Union’s new government was assembled and inaugurated. One of the first decisions of the first Congress was to fund the debts that the individual states incurred in fighting the Revolutionary War. The question, of course, was how would it do that. Washington’s Treasury Secretary, Alexander Hamilton, long holding true to a belief that a large, powerful national government of centralized functions is the proper form of government for the new Union (although he conceded to the federal form that the majority of delegates at the Philadelphia Convention voted for), urged that Congress should charter a National Bank, after the British model. He took his suggestion to Washington and agreeing with Hamilton, a Bank Bill was introduced in Congress. But powerful state and government leaders, including Thomas Jefferson, Washington’s Secretary of State, James Madison, Congressman from Virginia, and several state leaders, particularly from Virginia, objected, characterizing such a bank as being “repugnant to the Constitution,” and assuming powers not expressly delegated to Congress in Article I. Washington then asked both Hamilton and Jefferson to provide him with memoranda outlining their arguments regarding the creation of such a National Bank.

(The Following section, as noted, is taken, in its entirety, from Kevin Gutzman’s book THOMAS JEFFERSON – REVOLUTIONARY (St. Martin’s Press, NY, 2017):

Jefferson began by describing the Bank Bill’s provisions, saying that he understood the underlying principle of the Constitution to be that “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” (here is quoted the Tenth Amendment, which at the time lay before the state legislatures for their ratification).  Power to pass the bill had not been delegated to the United States, he insisted. It did not fall under the power to tax for the purpose of paying debts because the bill neither paid debts nor taxed. It did not fall under the power to borrow money because the bill neither borrowed nor ensured that there would be borrowing. It did not fall under the Commerce Clause for it did not regulate commerce. Jefferson understood ‘regulating commerce’ to mean “prescribing regulations for buying and selling,” which the Bank Bill did not do. If it did that, he continued, the bill “would be void” due to its equal effects on internal and external commerce of the states. “For the power given to Congress by the Constitution,” Jefferson continues, “does not extend to the internal regulation of the commerce of a State (that is to say of the commerce between citizen and citizen), which remain exclusively with its own legislature, but to its external commerce only; that is to say, its commerce with another State or with foreign nations or with the Indian tribes.”  No other enumerated power (Article I, Section 8) gave Congress ground for passing this bill either, he concluded.

Besides the enumerated powers, the General Welfare Clause and the Necessary and Proper Clause had also been invoked by the bill’s proponents. Jefferson disposed of those clauses deftly as well. First, the General Welfare Clause said that Congress had power “to lay taxes for the purpose of providing for the General Welfare (emphasis Jefferson’s). The reference to the general welfare, he insisted, was bound to the power to tax. It did not create a separate power “to do any act they please which might be for the good of the Union, which Jefferson thought the preceding and following enumerations of powers rendered entirely obvious. To read the General Welfare Clause any other way would make the enumerations “completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress to do whatever would be good for the United States, and as they would be the sole judges of the good or evil, it would also be a power to do whatever evil they please.”

Jefferson, the skilled lawyer that he was, noted that one of the most basic rules of construction (contract law) cut strongly in favor of his argument. That rule states that “where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless.” Besides that, the Philadelphia Convention had considered and expressly rejected a proposal to empower Congress to create corporations. The rejection, he noted, was based partly on the fact that with such a power, Congress would be able to create a bank.

As for the Necessary and Proper Clause, Jefferson noted that it said that the Congress could “make all laws necessary and proper for carrying into execution the enumerated powers. But they can all be carried into execution without a bank. A bank therefore is not necessary and consequently, not authorized by this phrase (emphasis Jefferson’s).”  The Bank Bill’s proponents had argued for the great convenience of having a bank, which might aid in exercising powers enumerated in the Constitution, but Jefferson would have none of the idea that “necessary” could be twisted to mean “convenient.”

Jefferson concluded his memorandum with a brief statement on the president’s veto power, which he called “the shield provided by the Constitution to protect against the invasions of the legislature: (1) The right of the Executive. (2) Of the Judiciary. (3) Of the States and State legislatures.”  To his mind, the Bank Bill presented “the case of a right remaining exclusively with the States” – that of chartering a corporation. Congress’ attempt to take this right to itself violated the Constitution and Washington should veto the bill.

Washington did not agree. Instead, perhaps on the basis of Hamilton’s argument that Congress could adopt whatever kind of legislation it judged helpful in supervising the national economy, he signed the Bank Bill.   [Gutzman, Thomas Jefferson – Revolutionary, pp. 40-42]

THE IMPACT –

When a subsequent Bank Bill was challenged by the state of Maryland, in McCulloch v. Maryland (1819), Chief Justice John Marshall would revisit the arguments submitted to President Washington and as expected, he would side with Hamilton. Hamilton’s position, after all, would give the federal government a broad pen with which to write legislation, in contrast to the limits imposed on it by the very wording of the Constitution and the listing of the only powers that the States had delegated to the federal government. McCulloch was another in a series of cases written by Marshall usurping powers from other depositories and concentrating them in the federal government. The Supreme Court, a branch of the very federal government that it presides over, has consistently used its powers not to interpret the Constitution and offer opinions to other branches, but rather to secure a monopoly over the scope and intent of the government’s powers.

Marshall’s opinion in McCulloch gave Congress power that the States intentionally tried to prevent; he read a meaning and intent in the Constitution, in Article I, that was expressly rejected by the States when they debated and then signed the document on September 17, 1787. Marshall’s reading of Article I, in particular the “Necessary and Proper” Clause, gave Congress power “to which no practical limit can be assigned,” as James Madison put it.

With McCulloch, the Supreme Court committed a grave injustice to the system established by our founding fathers and our founding states. Marshall’s opinion directly contradicted an essential element of the states’ understating of the Constitution when they ratified it, and that understanding was that the Constitution created a federal government of express and limited powers so that the residuary of government power would remain reserved to the states and hence the sovereignty they long cherished would not be overly diminished by organizing into a Union.

And the history of judicial activism continued and still does ….

 

Reference:  Kevin Gutzman, Thomas Jefferson – Revolutionary, St. Martin’s Press, NY (2017).

A Government of the People, By the People, For the People… How it Really Works, According to Thomas Jefferson

THOMAS JEFFERSON - Time magazine cover

by Diane Rufino, September 20, 2017

Thomas Jefferson articulated the absolute right of a state to secede from the Union. He did so in 1798, in 1799, in 1816, and up until his death in 1826 (July 4, the 50th anniversary of the signing of the Declaration of Independence). The right of self-determination was proclaimed in the Declaration as a founding principle and was never surrendered in the Constitution. In fact, Jefferson and Madison (1798 and 1800, in his written documents explaining the nature of the agreement known as the US Constitution) both agreed that such an inherent right can never be contracted away, although it should be reserved for extreme cases.

For Jefferson in 1816, the States had a clear right to leave the union. Government power, he reasoned, should never be concentrated at the top but rather at the bottom, closest to the people. If such were the case, there should never arise the level of tyranny that would warrant the drastic remedy of secession. The key, therefore, is to keep government closest to the people. Jefferson explained that the way to do this is to vest government only with those responsibilities that are absolutely necessary and those which people, in their individual capacity, cannot do or cannot be trusted to do and then to divide those responsibilities accordingly – with the governmental bodies closest to the people (localities) being responsible for the interests and affairs that touch on their lives most directly – their property, their livelihoods, their customs and communities, their education concerns, etc – and the government farthest away from them (Washington, DC) being responsible for the matters that are most external to their everyday lives, such as national security, international affairs and diplomacy, inter-state commerce, etc.

From Kevin Gutzman’s exceptional book, THOMAS JEFFERSON, REVOLUTIONARY:

Explaining the subdivision of government power, into “ward republics,” Jefferson wrote: “The way to have good and safe government is not to trust it all to one, but rather to divide it among the many, distributing to every one exactly the functions he is competent to. Let the National government be entrusted with the defense of the nation and its foreign and federal relations, the State governments with the civil rights, laws, police, and administration of what concerns the state generally, and the Counties with the local concerns of the counties; each Ward directs the interests within itself. It is by dividing and subdividing these republics from the great National one down through all its subordinations, until it ends in the administration of every man’s farm and affairs by himself, by placing under everyone what his own eye may superintend, that all will be done for the best…. I do believe that if the Almighty has not decreed that Man shall never be free (and it is blasphemy to believe it) that the secret will be found to be in the making of himself the depository of the powers respecting himself, so far as he is competent to them, and delegating only what is beyond his competence by a synthetic process, to higher and higher orders of functionaries, so as to trust fewer and fewer powers, in proportion as the trustees become more and more oligarchical. The elementary republics of the Wards – the county republics, the State republics, and the republic of the Union – would form a gradation of authorities, standing each on the basis of law, holding every one of its delegated share of powers, and constituting truly a system of fundamental checks and balances for the government. Where every man is a sharer in the direction of his ward-republic, or of some of the higher ones, and feels that he is a participator in the government of affairs not merely at an election, one day in the year, but every day; when there shall not be a man in the state who will not be a member of one of its councils, great or small, he will let the heart be torn out of his body sooner than his power he wrenched from him by a Caesar or a Bonaparte.”

The Roman Empire fell when its ruling authority in Rome presided over too large and diverse of a group to represent them and their interests properly in a concentrated government body. And the same is happening here in the United States. If we hope to make this country the one that it was originally destined to be, the country that Thomas Jefferson dreamed of and worked his life to guide, then we need to push for solutions that return power back to the people…  In my favorite movie, GLADIATOR, Emperor Marcus Aurelius confides in his loyal general, Maximus, and conveys his dying wish: “There was once a dream that was Rome. You could only whisper it. Anything more than a whisper and it would vanish… it was so fragile. And I fear that it will not survive the winter…….. There is one more duty that I ask of you before you go home. I want you to become the protector of Rome after I die. I will empower you to one end alone, to give power back to the people of Rome and end the corruption that has crippled it. It must be you. it must be you. You have not been corrupted by her politics.”

We are Rome. We are a republic in name only, and have been for a very long time now.  We must acknowledge that. Each congressman represents too large and diverse of a group of people (at least 700,000 individuals per congressional district) to act as a meaningful advocate in government, and each senator, representing each person in his or her state, has the same problem. And so, our elected representatives no longer work for us or our interests;  they become agents for the interests and preservation of the federal government – a government that becomes more interested in “the common good” with each year of its existence. Republics are only successful when they are relatively small, when the ratio of elected representatives to the constituency remains workable. The solution to returning power to the people is to subdivide our one great republic into smaller republics (as Jefferson called them, “ward republics”) – to subdivide government power with the greatest control over the individual and his or her everyday life vested in those government bodies most local and closest to the people.

A big government is not our friend, although it likes to portray itself as such. We’ve seen its violations against us over the years, including collecting our personal information, lying to the American people, refusing to punish those in office who have broken criminal laws (and have even skirted on treason), taxing us excessively (including to support terrorist regimes such as Iran and Pakistan), forcing people to purchase health insurance not because they need it but because others need it, opening our borders to leave our communities and jobs vulnerable, judicial activism from the courts, obstruction in our attempts to legitimize the election process, and most recently, wiretapping political a presidential candidate to undermine the success of a threatening political movement. Ask yourself one question: What power do We the People think really have over the governing of our states and our country?  The key to the security of freedom is the control the people have in their government. James Madison once wrote: “I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.”

The era of King George III is here. Americans have a history of how to respond to such tyranny…. Unless, of course, we have truly become Rome.

Edward Snowden, labeled both a patriot by many and a traitor by some, said: “Being a patriot doesn’t mean prioritizing service to government above all else. Being a patriot means knowing when to protect your country, knowing when to protect your Constitution, knowing when to protect your countrymen, from the violations of and encroachments of adversaries. And those adversaries don’t have to be foreign countries.”

 

Reference:  Kevin Gutzman, Thomas Jefferson – Revolutionary, St. Martin’s Press, NY (2017).

Give Trump a Chance

- at school (Feb. 28, 2017)

By Diane Rufino, March 18, 2017

I’m tired of the insane talking points and reactions to everything President Trump is doing. I’m tired of the messages and texts from people who accuse me of being some horrible person for supporting the election of Trump and his policies of tax reform, healthcare reform, trade deal reform, job creation, immigration enforcement and increased homeland security. Everyone who voted for Trump saw the necessity for these policies. And guess what, most of America (through the electoral system) agreed with him and rejected the decaying policies of the Democratic party and it spokesperson, the deeply-flawed Hillary Clinton. It indeed was a revolution of sorts, accomplished by a momentous turn-out at the ballot box and a major shift in ideology by a good chunk of the American people. Government wasn’t working for them.

The dishonest news better get on board and start paying allegiance to the ones it was granted first amendment protection in the first place – the American people….. not a political party and not the federal government. They need to start reporting objectively and accurately and start recognizing the legitimate concerns of the people and not the goals of the Democratic Party or the progressive movement. Otherwise, let them organize as a PAC. Progressive judges need to read the Constitution, understand it, and stop trying to be a branch of government that they are not. People need to show respect for the results of 2016 election because that was the voice of their fellow citizens. The election was extremely significant in what it stood for. All anyone needs to do is to take a look at a breakdown of the election county-by-county across the 50 states. Again, it was a grassroots revolution…. a unified message that government is corrupt, bloated, antagonistic to the interests of business and taxpayers alike, unfit to protect the American people and manage who comes across our borders, and incapable of putting the interests of American citizens before the interests of other groups.

Give President Trump a chance. Sit back and enjoy the increase in jobs. People who have jobs can support themselves and their families and can live productive lives with dignity and self-respect. Sit back and enjoy the lower taxes you’ll have to pay (if you are, in fact, one of the ones who pay). Sit back and watch how greater homeland security will make you feel safer. Sit back and watch how a common-sense immigration policy will reduce the burden on our social services, provide jobs for citizens, and reduce the violence in our communities. Sit back and enjoy the lower healthcare insurance premiums that you will have to pay. Sit back and enjoy decreased federal regulations that used to strangle small businesses, burden agriculture, increase costs of energy, lower the efficiency of public education, and lessen the personal use and enjoyment of our real property. Give him a chance. Maybe you’ll see that, in fact, the good and decent people of the United States got it right and that the people’s revolution was a good thing after all.

Let’s not forget the words of President John F. Kennedy: “Those who make peaceful revolution impossible will make violent revolution inevitable.”

TRUMP - thumbs up

History Speaks Through the Monuments on our National Mall

jefferson-memorial-lit-up

by Diane Rufino, January 21, 2017

Yesterday I visited the Jefferson Memorial to commune with my favorite Founding Father. Jefferson is perhaps the single reason I am so very proud to be an American. The principles he articulated in the Declaration of Independence, which the Second Continental Congress adopted in 1776, laid the basis for our independence from Great Britain. It established the principles and government philosophy that defines us as a nation, and although it’s message is lost on most Americans, I am sure to remind my students how it laid the basis for government by proclaiming that power originates with the individual and that power can never be fully divested from them. The Declaration informed Britain and the rest of the world that the thirteen colonies were dedicated first and foremost to the recognition and preservation of individual liberty. To that end, they proclaimed “to a candid world” that individuals of those colonies have the natural right to a government of the people, by the people, and for the people. In other words, government serves the people and its primary role is, and should be, to protect their rights. Nowhere in our founding documents does it state that government is a permanent fixture. Nowhere does it provide that the government has the right to seeks its longevity or its permanence. Rather, it exists in form and organization just as long as it serves its legitimate ends. The people always have the right – even the duty – to alter or abolish it when it frustrates its purpose.  Jefferson and Madison, along with our other Founders, knew full well that power would corrupt if it was centralized enough in government, then government would eventually limit or even deny rights away to the people. And in many instances, we see that the fears of our Founders have come to fruition.

What I learned from Jefferson is that when it comes to citizenship, it is perhaps more important to represent an idea or an ideal than merely a physical location.

And so I sat inside the rotunda and gazed up for awhile at this under-appreciated Founding Father. I walked around the room and read some of his poignant quotes memorialized on the walls and reflected on their timeless message. Sadly, to some degree, our government has rejected his wisdom.  Then I went outside the rotunda and looked straight across the tidal basin towards the rest of the National Mall. I could easily see the Washington Monument.  And I could also see the White House.  What I couldn’t see was the Lincoln Memorial.  I thought about that for a moment. And then I began to  note its significance.

It’s true that the Jefferson Memorial and the Lincoln Memorial are not visible to one another. I think there is a reason for that, whether or not it was a conscious factor in the Mall’s design. Abraham Lincoln didn’t see eye to eye with Jefferson. In fact, his vision of government was quite different. While the Declaration of Independence clearly provides that individuals can alter or abolish their government, Lincoln adamantly proclaimed that the Union, and by extension the federal government, was to be perpetual. In fact, after he repeatedly ignored and even violated provisions of the Constitution, suspended habeas corpus, imprisoned journalists, publishers, newspaper owners, citizens and seized their property, waged war without a declaration, etc, he sought a resolution from Congress to excuse those violations. Such a resolution was proposed and it read: “For the preservation of the federal government,”…..  Congress would the actions of President Lincoln.  (The resolution was never voted upon because the session of Congress concluded for the year). Lincoln had to ignore the principles laid down in the Declaration if he was to use force to bring the South back into the Union and convince the North that he had the power to do so.

President Lincoln destroyed the notion of limited government and its relationship to the individual, as promised in the Declaration, and our country has never sought to reclaim those ideals. Why?  Because government had become so strong and no one, no state, and certainly no government official had the guts to challenge the creature that the government had become. States have cowered and caved. They have tacitly relinquished their independence and have become subjugated to the design and will of the federal government. Perhaps that is why, when the government designed the National Mall, it put the memorial to Abraham Lincoln at the most prestigious position. Its layout is spectacular; Lincoln sits on high, looking out over a long reflecting pool, to the strongest branch of government – Congress. Lincoln is rewarded and glorified because he is the president who achieved the most in transforming the government into one of great power and influence and coercion over its independent parts (the States). Lincoln, in a sense, destroyed the ideals that inspired our founding generation to fight for their independence.

The Jefferson Memorial directly faces the White House – the home of our President and Chief Executive. The White House does not face the Lincoln Memorial.  Could it be that this lay-out was intended to remind Presidents of Jefferson’s ideals and the principles of government outlined in the Declaration?  Could it be that the president of the United States should forever be reminded that government is not a tool of an ambitious president (as it was for Abraham Lincoln) but rather an institution which serves the people and their interests in life, liberty, and happiness.

Something to think about.

What I can say is that when I listened to Donald Trump’s inaugural address – and particularly the part when he announced: “Every four years we gather on these steps to carry out the orderly and peaceful transfer of power….  Today’s ceremony, however, has a very special meaning because today we are not merely transferring power from one administration to another or from one party to another, but we are transferring power from Washington, D.C., and giving it back to you, the people.”  — I couldn’t help but smile and think to myself how Jeffersonian he sounded.

Maybe, at least for the next few years, we can enjoy a government of the people, by the people, for the people. Maybe Trump, in fact, gets it.

inauguration-2017-in-front-of-jefferson-memorial-very-good

SAVE THE REPUBLIC! Rethinking the American Union of States for the Preservation of Republicanism

SECESSION - Separate or Die (head, the federal government, is chopped off)

by Diane Rufino (citing Donald Livingston in his book Rethinking the American Union for the Twenty-First Century), July 26, 2016

The purpose of this article is three-fold:  First, I want to be provocative and get readers thinking.  Second, I wish to educate the reader on our founding principles. And third, I hope to encourage the reader to read the book Rethinking the American Union for the Twenty-First Century, written in part and edited by Donald Livingston, founder and president of the Abbeville Institute.  I enjoyed the book immensely and wanted very much to help get the word out.

I think the best way to encourage one to read the book Rethinking the American Union for the Twenty-First Century is to hook him or her using one of the more thought-provoking themes of the book. And so, this article is composed in great part using selected portions from one of the chapters in that book which I found most interesting – “American Republicanism,” authored by Livingston), with a discussion of nullification, interposition, secession, and federalism by myself.  Credit, of course, goes first and foremost to Professor Livingston.

Article IV of the US Constitution guarantees to every State in the Union “a Republican form of government.”  It is known as the “Guarantee Clause.”  It has not been widely interpreted, but constitutional scholars think it ensures that each State be run as a representative democracy or a dictatorship, preventing any initiative to change a State constitution to provide such.  The Supreme Court has essentially acknowledged that it doesn’t have the slightest idea what it means, has been reluctant to specify exactly what a “republican form of government” means and has left the clause devoid of meaning.  Historically, however, republics have had distinct characteristics, namely that its citizens make the laws they are to live under, that there is a Rule of Law, and that the republic itself be relatively small with respect to population and territory, to ensure that representation is meaningful.

The American system of 1789 was not a republic. It was a federation of republics – each state itself a republic – but the Union itself was not a republic. “A federation of republics is not itself a republic, any more than a federation of country clubs is not in and of itself a country club.” Under the Constitution of 1787, the central government could rule over individuals but only under the powers delegated to it by the sovereign States. All other powers of sovereignty belong to the States, expressly reserved through the Tenth Amendment, by the natural law of sovereignty, and contractually by force of the compact theory characterizing the Constitution. Given this framework, the final safeguard for a truly republican form of government for the people in America was, and could only be, some form of lawful resistance to the concentration of coercion in the federal government, which includes state interposition, nullification, or secession. These remedies are included in the “reserved powers” belonging to the States.

Nullification is a legal theory that holds that a State has the right to nullify, or invalidate, any federal law which that State has deemed unconstitutional. If the authority for the federal government only comes from the highly-contested and debated powers that the States agreed to delegate from their reservoir of sovereign powers, as listed in the Constitution, any federal law, policy, action, or court decision that exceeds such grants of power is “null and void” and lacks enforcement power. Since the federal government will always seek to support and enforce its laws and actions, it must be the States, as the parties to the Constitution and the ones which suffer the usurpation of powers with each unconstitutional action, which must rightfully declare “unconstitutionality” and prevent them from being enforced on a free people. Because the right of nullification is not prohibited by the Constitution (nor is it even addressed), it is reserved by the States under the Tenth Amendment.

Interposition is another claimed right belonging to the States. Interposition is the right of a State to oppose actions of the federal government that the state deems unconstitutional by in order to prevent their enforcement.  The very definition of a tyrannical government is one that imposes unconstitutional actions on its citizens. Tyranny is arbitrary rule. Interposition is the actual action, whether legislative or otherwise, to prevent an unconstitutional federal law or action from being enforced on its people. The most effective remedy against unconstitutional federal action, as emphasized by both Thomas Jefferson and James Madison, is nullification together with interposition. Interposition finds its roots in the Supremacy Clause.  While the Constitution and the laws made in pursuance are considered the supreme law of the land, laws (and other actions) not grounded in rightful or legitimate Constitutional powers are not supreme and the States are well within their powers to prevent such usurpation of government power belonging to their sphere of authority.

Secession, like nullification and interposition, is not prohibited by the Constitution (or even addressed), and hence, is a reserved right of the States.

Nullification and interposition were invoked in 1798 by Kentucky and Virginia to identify the Alien & Sedition Acts as unconstitutional and to prevent citizens of those states from being imprisoned essentially for their exercise of free speech and press. Secession was threated in 1815 by Massachusetts after it characterized Jefferson’s embargo against Great Britain and his Louisiana Purchase and then Madison’s War of 1812 as a history of abuses against the North, with an intent to further the interests of the South. All three States’ Rights’ remedies were regularly invoked in the antebellum period, in every section of the Union, to assert State sovereignty and to constrain the central government. As of 1860, the central government was out of debt and imposed no inland taxes. It existed simply off a tariff on imports and land sales. The Supreme Court was tightly constrained in its exercise of judicial review. It challenged the constitutionality of acts of Congress only twice – in Marbury v. Madison (the Judiciary Act of 1789) and the Dred Scott decision (the right of a slave to challenge his status in a non-slave state when brought there by his master). States and localities in almost all States in the North refused to comply with the Fugitive Slave Act (nullification), either by statue or by civil acts of disobedience, and most strikingly, the Wisconsin legislature and the State Supreme Court in 1854 and 1859 outright challenged the constitutionality of the Act (citing coercion of the states and state officials). South Carolina nullified the Tariff of 1828, citing the improper nature of the tariff, changing it from an ordinary tariff (for revenue collection for the government) to a protectionist tariff (to provide direct funding of “improvements” for the North, as well as other enormous benefits), and claiming it was nothing more than a federal scheme to directly enrich the North at the great expense of the South.

Today, it is taught and it is believed that the “checks and balances” in the American system are only those between the president, Congress, and the Supreme Court. We know about the veto procedure, the ratification process for treaties, appointments (including federal court justices) and judicial review (this last check is not in the constitution actually but a creature of the Supreme Court itself!)  The purpose of our Separation of Powers and our series of checks and balances is to prevent the consolidation of power in any one branch of government and any one group of representatives.  But only a very limited number of Americans understand and appreciate that the greatest check on the consolidation of power comes from the unique design feature of our government established by the States and our Founding Fathers in the conventions and debates creating the Constitution – and that is Federalism.  Federalism is idea that real power is shared by the members of the “federation,” which are the States, with the creature they created (the federal government), which is the reservoir of powers expressly delegated to it by the US Constitution.  Federalism is a “sharing” or “division” of power among sovereigns in order to prevent concentration and tyranny.  The idea is that the government, as a sovereign with very limited and expressly delegated powers, and the States, as sovereigns retaining all other powers of government, will jealously guard their sphere of power and will watch, ever-so-vigilantly, the actions of one another.  What more effective check on government power could there be !!  Sovereign versus sovereign, which is what the term “dual sovereignty” refers to.  Or, as I like to refer to this design feature: “Titan versus Titan” (a reference to Greek mythology).  Alexander Hamilton, in a speech to the New York Ratifying Convention on June 17, 1788, explained it this way: “This balance between the National and State governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them.”

Sadly, this most effective check on consolidation of power in DC has been effectively eroded – mainly at the hands of the US Supreme Court.  The checks from the States on central authority in the form of nullification, interposition, and secession have now been ruled out.  And this is just another way of saying that the federal government can define the limits of its own powers. And that is what the American colonists and ratifiers of the Constitution drafted in Philadelphia in 1787 meant by “absolute monarchy.”

Ask yourself this:  Which branch of government ruled out the essential and natural remedies of nullification, interposition, and secession?  The answer is the US Supreme Court, supporting the ambitious plans of the federal government and improperly relying on Marbury v. Madison (1803) and the Supremacy Clause of the US Constitution for authority. For a State to treat its decisions with less than full support would bring the full resources of the federal government into its backyard. It’s happened before. Andrew Jackson, Abraham Lincoln, Andrew Johnson, Franklin D. Roosevelt, Harry S. Truman, Dwight D. Eisenhower. Rather than interpreting the Constitution, which pretty much is its sole task, the Supreme Court has redefined a new political and government system, one that is quite different from the one entrusted to us by our framers and founders.

When authority taken by the federal government falls outside of the enumerated powers, it makes no sense to ask the federal government to rule on whether the federal government has the power or not. The States, the ones which debated and ratified the Constitution for THEIR benefit, have no umpire on the bench.  As historian Tom Woods points out, if the federal government is allowed to hold a monopoly on determining the extent of its own powers, we have no right to be surprised when it keeps discovering new ones.

So, it is no surprise that the Supreme Court consistently and steadily handed down decision after decision to strip the States’ of their natural remedies against the Titan seeking to subjugate them – the federal government. Again, the Supreme Court is itself a branch of the very government that seeks to benefit from the consolidation of power it wants by weakening the States.  What better way to get the States to calm down and get in line?

Thomas Jefferson was skeptical of the federal judiciary and warned that they had the greatest potential to undermine republican government. In 1823, he wrote: “At the establishment of our Constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution and working its change by construction before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.”

If you believe, as most Americans seem to believe (because of government indoctrination), that States no longer have the rights of nullification, interposition, and secession because of the action of one man, a virtual dictator, Abraham Lincoln, then you must reconcile the fact that no State any longer enjoys a republican form of government, as guaranteed in Article IV. That is, they no longer enjoy a republican form of government under any historical understanding of what such a government is nor under the vision of our founders. That notion has now decayed into a legal fiction.

But if the States are not republics, what are they?  Donald Livingston argues that the answer was given by Alexis de Tocqueville in his assessment of the French Revolution. According to de Tocqueville, the French revolution was intended to overturn the monarchy and return power to the people by creating a republic but in reality, it fundamentally changed nothing. The coercive government of the monarchy was simply replaced by a different type of coercive government.  The monopoly over government and land created by Kings (Divine Right of Kings) is a doctrine that embodies two bodies of the king. This duality is symbolized by this famous phrase: “The King is dead! Long live the King!” The first body of the king was the flesh and blood; the mortal body.  The second body was the monopoly, or the artificial corporation, established by birth-right and familial ties. Both bodies are coercive in nature since they are not “of the people” and can never truly represent them. When de Tocqueville said that the French Revolution fundamentally changed nothing, he meant that all that it did was kill the first body of the king. It left the second body of the king intact, merely changing its name from the “Crown” to the “Republic.” The revolution merely replaced the person of the king with a fictitious “nation-person.” In other words, what was created after the French Revolution was an absolute monarchy without the monarch; a regime that had all the major defects of a monarchy but none of the benefits. The post-French Revolution era of “republics” would increase government centralization beyond the wildest dream of any monarch. The German economist, Hans Hoppe, estimates that before the mid-nineteenth century, monarchs, as bad as they might have been, were never able to extract more than 5-8 percent of the gross national product (GNP) from the people, whereas “republics” have been able to exploit over 60 percent.

In his war to prevent Southern independence, Lincoln and the perversely-named “Republican” Party destroyed the two American institutions that had made true republicanism possible in a region on our continental scale – State nullification and secession. Without these rights, there can be no practical check to centralization and oppression of government, and hence, no practical way to ensure that the People of the several States are guaranteed a republican form of government.

Is it possible to have an exceedingly large republic, such as the size of our current-day United States?  British philosopher David Hume once considered the question of a large republic. He proposed the first model of a large republic in his essay “Idea of a Perfect Commonwealth,” which was published in 1792.  Hume’s model did not physically seek to divide territory up physically into individual sovereigns but rather to decentralize government power so as to preserve the human scale demanded of republican self-government. The question is whether this can realistically be done.

Hume agrees with the republican tradition that “a small commonwealth is the happiest government in the world within itself.” But Hume’s model of a large republic, in contrast to the historically small republic, would be to order the large republic in such a way as to have all the advantages of a little republic. The question is whether Hume’s model is translatable to the real world: Can the size of a republic be expanded without destroying those values unique to republican government (self-government and the rule of law) that require a human scale.

Hume’s idea of a large republic is something of the size of Great Britain or France. (Remember his essay was written in 1792!)  As a comparison, Great Britain is approximately equivalent in size to Wyoming and France is approximately equivalent in size to Texas. In Hume’s model, the republic is divided into 100 small republics, but with a national capital. Each of these small republics is then divided into 100 parishes. The members of each parish meet annually to elect 1 representative. This yields 100 representatives in each small republic’s legislature. The legislature selects from among its members 10 magistrates to exercise the executive and judicial functions of the republic and 1 senator to represent the republic in the national capital. That yields 100 senators, from among which 10 are chosen to serve as the national executive and judiciary.

Laws would be proposed by the national senate and passed down to the provincial republics or ratification. Each republic has one vote regardless of population, and the majority rules. To free the provincial legislature from having to vote on every trivial law, a bill can be sent instead to the ten provincial magistrates in each republic for ratification.

How does Hume’s large republic compare to the “highly-centralized regime” that the United States has become today?  Hume’s republic has 100 senators in the national capital representing the individual States, as we do. But the legislative body representing the nation of individuals is located in the several capitals of the provincial republics. This provides three essential advantages.  First, it provides a better and more republican ratio of representation to population. Hume’s republic is the size of Britain, which in his time had some 9 million people; yet his regionally dispersed legislature jointly yields 10,000 representatives.  [100 x 100].  By contrast, the United States has 305 million people, which is 34 times as many inhabitants. Its representative body contains not 10,000 representatives but only 435 representatives – a number that Congress capped by law in 1911.  Hume’s large republic provides a ratio of 1 representative for every 900 people, and so it is of a republican scale.  This is very important !!  The United States’ system provides 1 representative for every 700,000 people, which is not even remotely within a republican scale.

And if you are thinking that this unrepublican character of the United States can be remedied by abolishing the law setting the cap at 435 and increasing the number of representatives in the US House, you will need to understand that judging by the size of legislatures around the world, 435 is just about the right size for a lawmaking body. Everything in nature has a proper size for optimum functionality. A cell can only grow to a certain size (a certain volume-to-cell-surface ratio) so that it can absorb nutrients, eliminate waste, and respire most efficiently. A jury of 12 is perfectly suited to determine the facts of a case; a jury of 120 would be dysfunctional.  When the first US Congress met in New York in 1789, there were 65 representatives. There was 1 representative for every 60,000 people. James Madison thought that was an inadequate ratio to adequately represent the people in a republic. When the number of representatives was capped at 435 in 1911, the population in the United States was 93,863,000. That means that there was 1 representative for every 215,777 inhabitants. If we were to use the same ratio that was used in 1789 – 1: 60,000 – there would be over 5,000 members in the House of Representatives. This would be impossibly large for a lawmaking body. Size does matter.

So, if the number of representatives in Washington DC cannot be increased as the population increases, then we have clearly reached the point where talk of republican self-government is utterly meaningless.  We are merely a republican in name only. In the not too distant future, the population of the United States will reach 435 million. This would yield one representative for every million persons.  Who could honestly believe a regime under this system could be described as a republic?

The point is that a country can literally become too large for self-government.  It becomes unresponsive to the people because its representatives cannot possibly represent the interests of all its constituents.

If the United States has indeed reached the point of political obesity, then the only remedy would be to downsize. The United States will need to be downsized either through peaceful secession movements or through a division into a number of federative units forming a voluntary commonwealth of American federations – an idea that Thomas Jefferson was fond of.

For the moment, let’s put peaceful secession aside (which would divide the Union into distinct territorial jurisdictions or would create individual, independent sovereigns).  Suppose that the United States adopts such a model as Hume’s large republic. This would require abolishing the House of Representatives in Washington DC (Yay!) and transforming the State legislatures into a joint national legislature. The Senate would propose legislation to be ratified by a majority of the States, each State having one vote.

Consider trying to enact the unpopular legislation passed in 2009 and then 2010 under such a model. Of course, I’m referring to the Bailout bills and the stimulus packages of 2009 and then the Patient Protection and Affordable Care Act (or grossly referred to simply as the “Affordable Care Act’; or aptly named “Obamacare”) of 2010. A strong majority of Americans opposed the bailouts for the monster banks whose corrupt and inept policies caused the financial meltdown in 2009, the economic stimulus packages that they knew wouldn’t work, and Barack Obama’s healthcare plan of some two thousand pages, rushed through after secret meetings and secret deals and with publicly-acknowledged privileges given to some states and not others, and admissions by its leading supporters (Democrats) that they hadn’t even read it.  To this should be added that many believe that Congress has no constitutional authority to bailout businesses, let alone arbitrarily choosing which ones to provide federal aid, nor to impose a national healthcare plan, regardless whether it is good or not and whether or not it would help certain citizens out. Now, had these bills been sent down to the State legislatures for debate and ratification, as required by Hume’s large republic model, their defeat would have been so certain that they probably would never have even been proposed in the first place.

The second advantage presented by Hume’s model is that by dispersing the national legislature among the provincial republics (the smaller republics), he has eliminated the corruption that inevitably comes from putting the House of Representatives and the Senate in the same place. The number of representatives in Washington is 435 in the House, and 100 in the Senate– for a grand total of 535 lawmakers. A majority of this number is only 269. This small number rules 305 million people. And the majority can be even less, since both houses can lawfully operate, and they often do, with a mere quorum. A quorum majority of both houses of Congress is only 135 !!

Consider also that the US Supreme Court, centered in DC, a branch of the federal government, with justices who are appointed according to political and ideological lines – and not for proven understanding and adherence to the Constitution – has usurped the traditional “police powers” of the States, which it exercises for the health, safety (including law enforcement), welfare, education, religion, and morality of its citizens. The police powers exercised by each individual State for the benefit of its own people is the very essence of republican life. Nine unelected Supreme Court justices with life tenure – by only a vote of 5-to-4 – make major social policy for 305 million people. Political issues that are reserved to the States, such as abortion, marriage, and voter integrity laws, have been taken out of the policy arena and magically transformed into “constitutional rights.” This means, in effect, that the Court can rewrite the Constitution at will, entirely by-passing the process specifically provided for in Article V (ratification of any alteration/amendment of the Constitution by a ratification by three-fourths of the States).  Again, to think that five members of a high court can usurp lawmaking authority from the legislature (popularly-elected), can usurp powers from the States, and can transform the meaning and intent of the Constitution from the bench rather than the lawful process specifically put in place for the People themselves to define the limits of their government and we are still a republic is ludicrous.

Dispersing the legislatures among provinces would not necessarily get rid of government corruption, which is one of the biggest problems with a consolidated government. However, it would not exist on the same scale and of the same intensity that we see in DC today. Hume’s national legislature sits jointly in the 100 provincial capitals.  That means that a lobbying interest must deploy a much greater number of lobbyists and over greater distances. In addition, it would be much more difficult for representatives to coordinate with each other to buy and sell votes, as is routinely done in Congress today. With such a large republic, representatives would be more cautious and frugal in spending taxpayer money. After all, the 10,000 dispersed representatives who live in the same neighborhood with their constituents would have to look them in the eye and would have to answer to them.

Third, Hume provides a number of checks to prevent a faction from dominating the whole. If the senate rejects a proposed law, only 10 senators out of 100 are needed to veto that decision and forward the bill to the republics for consideration. Laws thought to be trivial can be sent from the senate to the ten magistrates of the republic for ratification instead of calling on the whole legislature. But only 5 out of 100 provincial representatives are needed to veto this and call for a vote of their legislature. Each (small) republic can veto legislation of another republic and force a vote on the matter by all the republics.

Should the United States be divided up into provincial republics – into a “federation of republics” – in order to provide a true republican form of government to its people?  Thomas Jefferson thought so.  George Kennan, esteemed historian and American diplomat (crafted the US policy of containment with respect to the Soviet Union) also thought so. In his autobiography, Around the Cragged Hill, Kennan argued that the United States has become simply too large for the purposes of self-government. As he argued, the central government can rule 305 million people only by imposing one-size-fits-all rules that necessarily result in a “diminished sensitivity of its laws and regulations to the particular needs, traditions, ethnic, cultural, linguistic, and the like of individual localities and communities.”  Kennan passed away in 2005.  That the lives, property, income, and fortunes of 305 million Americans should be the playthings of an oligarchy in Washington that can act by a majority in Congress of only 269 (and 135 if acting by a quorum) and that the essence of republican life – religion, morals, education, marriage, voting rights, law enforcement, and social welfare – should be decided by nine unelected Supreme Court justices is something no free, liberty-minded people should tolerate.

Of course, there is the other option – secession and the formation of individual republics, not held together in federation form. It is said that secession should and must be ruled out because it causes war and it will necessarily involve bloodshed.  But that is not necessarily true. Of course it will depend on the ambitions of the administration in Washington DC, in particular, the president.  We would hope that we should never again suffer the likes of another Abraham Lincoln. But there are many examples of states that have seceded peacefully, including a number of Baltic states from the former Soviet Union. Norway peacefully seceded from Sweden in 1905 and Singapore did so from the Malaysian federation in 1965.  Eventually, if things don’t change and freedom’s flame is close to being extinguished, secession may be the remedy to save the American experiment. Additionally, it may be the only way to save the US Constitution – by putting it in the hands of a people who will take care of it and be much more vigilante with its limited powers and its checks and balances than Americans have been.  When 11 Southern States seceded from the Union in 1860-61 and formed the Confederate States of the American, they, as a Union, established a new constitution. This would be the third constitution that Americans made for themselves, and in most respects, it was far superior to the one of 1787 – they backed out of.  It included several provisions which would have made it much more difficult for the central government to concentrate and usurp power. Had Lincoln respected the States’ right of self-determination (as proclaimed in the Declaration of Independence), we would have had the unique opportunity to compare, side-by-side, how each Union of States (North or South) fared under their constitutions.  The point is that secession gave the People (acting in State conventions) the opportunity to correct the defects in the Constitution that caused them to be oppressed by government. The question will be: when that time comes (and maybe it is already here), will we have the Will to Secede!!  Already, between 19-34% of Americans (ranked by State), now believe we would be better if States peacefully left the Union.

Donald Livingston closes his discussion of “American Republicanism” with this summary: “When a healthy cell grows too large, it divides into two cells. It is the cancerous cell that no longer knows how to stop growing. That artificial corporation, created by the individual States over two centuries ago, called the “United States” has, over time, metastasized into a cancerous growth on a federation of continental scale, sucking republican vitality out of States and local communities. The natural chemotherapy for this peculiar condition is and can only be some revived form of State interposition, nullification, or secession. If these are rejected out of hand as heresies (as our nationalist historians have taught since the late nineteenth century), then we can no longer, in good faith, describe ourselves as enjoying a republican style of government.

American secession

 

Again, I encourage everyone to read the entire book – Rethinking the American Union for the Twenty-First Century.  Aside from Donald Livingston, accomplished authors and academics Kent Masterson Brown, Dr. Thomas DiLorenzo, Dr. Marshall DeRosa, Yuri Maltsev, and Rob Williams also contributed chapters.

 

References:

Donald Livingston, ed., Rethinking the American Union for the Twenty-First Century, Pelican Publishing Company, 2013.

Poll:  One in Four of Americans Want Their State to Secede, but Why?  –   http://blogs.reuters.com/jamesrgaines/2014/09/19/one-in-four-americans-want-their-state-to-secede-from-the-u-s-but-why/

Poll: A Quarter of Americans Want Their State to Secede –   http://talkingpointsmemo.com/livewire/poll-seccession

Poll:  One in Four of Americans Want Their State to Secede –   http://dailycaller.com/2014/09/19/poll-one-in-four-americans-want-their-state-to-secede/

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