No U-Turns

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Government
encroachments on civil society, now associated with the Bush administration,
actually ride on coat-tails of mistakes made long ago. Recall that
on his way home from Independence Hall, where he had been delegate
to the Constitutional Convention of 1789, Benjamin Franklin is said
to have been asked what kind of government he and the others had
created. “A republic,” answered Franklin, “if you can keep it.”

If the Franklin
fable be true, then evidently like many today, Ben had not read
the fine print. For as Albert Jay Nock points out in the book Our
Enemy the State
, written in 1935, although the charter of
the American revolution was the Declaration of Independence, “which
took its stand on the double thesis of ‘unalienable’ natural rights
and popular sovereignty…no such idea of popular sovereignty, however,
appeared in the political organization that was set up in 1789 –
far from it.”

Influenced
by John Locke, who was no believer in “a numerous democracy,” the
“peculiar task” of the delegates, as Nock put it, was to bring about
a government in such form as to “preserve the appearance of actual
republicanism without the reality.” This was done, Nock tells us,
by providing for “an exercise of political self-expression by the
general electorate which should be so managed as to be, in all essential
respects, futile.”

In a letter
of 1882 to Thomas F. Bayard, Lysander
Spooner
pointed out to Delaware Congressman Bayard that the
legislative power created by the Constitution was “a pure usurpation,
on the part of those who now exercise it, and not a ‘trust’ delegated
to them.” This reality is proved, wrote Spooner, “by the fact that
the only delegation of power, that is even professed or pretended
to be made, is made secretly – that is, by secret ballot –
and not in any open and authentic manner; and therefore not by any
men, or body of men, who make themselves personally responsible,
as principals, for the acts of those to whom they profess to delegate
the power.”

The Constitutional
implementation of this reality can be found in the first paragraph
of Article I, Section 6, which prescribes:

For any
speech or debate in either house, they [the Senators and Representatives]
shall not be questioned [held to any legal responsibility] in
any other place.

“This provision,”
wrote Spooner, “makes the legislators constitutionally irresponsible
to any body; either to those on whom they exercise their power,
or to those who may have, either openly or secretly, attempted or
pretended to delegate power to them. And men, who are legally responsible
to nobody for their acts, cannot truly be said to be the agents
of any body, or to be exercising any power but their own: for all
real agents are necessarily responsible both to those on whom they
act, and to those for whom they act.”

“All this pretended
delegation of power having been made secretly – that is, only
by secret ballot – not a single one of all the legislators,
so-called, who profess to be exercising only a delegated power,
has himself any legal knowledge, or can offer any legal proof, as
to who the particular individuals were, who delegated it to him.
And having no power to identify the individuals who professed to
delegate the power to him, he cannot show any legal proof that any
body ever even attempted or pretended to delegate it to him.”

“Plainly a
man, who exercises any arbitrary dominion over other men, and who
claims to be exercising only a delegated power, but cannot show
who his principals are, nor, consequently, prove that he has any
principals, must be presumed, both in law and reason, to have no
principals; and therefore to be exercising no power but his own.
And having, of right, no such power of his own, he is, both in law
and reason, a naked usurper.”

Constitutional
scholar Spooner appended the following indictment to his famous
essay No
Treason VI
written in 1870:

“Inasmuch as
the Constitution was never signed, nor agreed to, by anybody, as
a contract, and therefore never bound anybody, and is now binding
upon nobody; and is moreover such an one as no people can ever hereafter
be expected to consent to, except as they may be forced to do so
at the point of the bayonet, it is perhaps of no importance what
its true legal meaning, as a contract, is. Nevertheless, the writer
thinks it proper to say that, in his opinion, the Constitution is
no such instrument as it has generally been assumed to be; but that
by false interpretations, and naked usurpations, the government
has been made in practice a very widely, and almost wholly, different
thing from what the Constitution itself purports to authorize…But
whether the Constitution really be one thing, or another, this much
is certain – that it has either authorized such a government
as we have had, or has been powerless to prevent it.” In either
case, concluded Spooner, the Constitution is “unfit to exist.”

Nock pointed
out that the Constitution was written in the aftermath of a revolution
that had been “incited by abuses and misfeasances;” and that because
the philosophy giving play to those misfeasances was “never examined,”
the abuses and misfeasances should be expected to recur under the
new governmental form. The fundamental nature of America’s government
has indeed remained unaltered in its ability to offer sagacious
actors access to the “political means” for harnessing government
coercion in the service of private economic advantage.

Today the Constitution
is worse than a dead letter, for it provides the facade of legitimacy
behind which government actors are enabled to do as they please.

Although the
American people would be safer from harm if we simply shut down
the federal government and all appendages thereto, we cannot get
there from here, for when the Constitution created the unaccountable
entity that is empowered to suck law out of its fist, and allowed
to assume monopoly of violence, we were started on that day down
the road that leads to the place where we have now arrived, and
evidently Spooner and Nock were among the few who noticed the signs
that said “No U-Turns.”

May
29, 2006

Jack
Dennon [send him mail]
studied mechanical engineering at Oregon State University at Corvallis,
mayhem at the Infantry School at Ft. Benning, and low flying at
the U.S. Army Aviation School at Ft. Rucker. Nowadays he uses DOS
to maintain legacy sawmill systems, studies how to replace them
with Linux, and helps his wife homeschool their children.

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