Suppose that various interests in society do not agree to abide by the rules of natural rights. Suppose instead they agree that they will play a game of power through the state. Suppose these interests discover a way to inoculate themselves against the rebellion and discontent of the populace who are the victims of their game by promoting popular acceptance of their game. Suppose, in other words, that they write and pass a constitution.
Definitions of constitution:
- revered founding document that creates and anoints the state
- miraculous invention that satisfies the popular craving for justice
- tablets that place the state, legislatures, and laws at the heart of a society
- a compact that renders politics respectable
- an illegitimate document of no authority that claims to provide society’s fundamental rules and principles of government. Lysander Spooner.
A constitution replaces the priests and judges of old, while fertilizing new unheralded forms of tyranny. A constitution legitimizes political conflict within agreed upon boundaries.
Like the blob in the movie The Blob, "an alien lifeform [that] consumes everything in its path as it grows and grows," the constitution makes the growth of the state an inevitable proposition. Eventually, as the political dynamics play out, the constitution fades into the shadow of an impotent shield quite different than the sacred tablets promised; leaving the hapless public only with remnants of words and feelings, their shield having been forged into chains. At this point, the constitution becomes a hope that people dream of going back to, a secular Garden of Eden.
Piercing the veil of respect
But was this paradise ever really the natural rights compact it was advertised as? Leave it to Lysander Spooner in 1867—1870 to point out in the most razor-sharp, hard-hitting, and logical manner, that the emperor not only has no clothes but never did: The Constitution provides no legal cover for the political power game whatsoever and never has. The Constitution has no authority as a legal document and never has had any. The rule of state is and always has been illegitimate. That rule depends on might and the sufferance of the public, but it has no legitimacy that can be linked to any legal procedures, voting, or taxes being paid.
Just to quote one of his arguments: "The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but u2018the people’ then existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves."
Having pierced the veil and shown that the Constitution is of no authority, Spooner splendidly showed what this implied. For example: "Who, then, created these debts, in the name of u2018the United States’? Why, at most, only a few persons, calling themselves u2018members of Congress,’ etc., who pretended to represent u2018the people of the United States,’ but who really represented only a secret band of robbers and murderers, who wanted money to carry on the robberies and murders in which they were then engaged; and who intended to extort from the future people of the United States, by robbery and threats of murder (and real murder, if that should prove necessary), the means to pay these debts."
Tricks and illusions
U.S. Supreme Court Justice John Scalia thinks "you would have to be an idiot to believe" that the Constitution "has to change with society." He adds that "the Constitution is a legal document. It says something and doesn’t say other things." Obviously, the Constitution’s words have not changed, ignoring a slew of amendments. Just as obviously, interpretations of the supreme law of the land have changed. From Spooner’s perspective, isn’t Justice Scalia idiotic for thinking that the Constitution has authority? He has power, and he better than anyone knows that the other eight justices also have power. The judicial activism that he complains about and that he also is guilty of, all of this dancing around the Constitution’s language and what it means for society, is cheerleading during the game. The actual game is making power pay. This game is played according to an elastic rule book. The Constitution is not only not a legal document, it also serves as a black veil that helps the magicians in power put over their tricks undetected. Perhaps the judicial activists realize something that Scalia doesn’t.
If Spooner is correct, and I think he is, then Scalia and many others (including me) are sparring about a castle in the air. By living in that castle, we make the illusion have a real impact as many illusions do. If we should ever rid ourselves of it, we’d have to construct quite a different social reality. In the same way, there is no war on terror except the one that the magician-in-chief has conjured up. But if enough people believe there is such a thing as a War on Terror, they create a real version of what they imagine it to be and their actions have real consequences. Get rid of this delusion and we face a very different reality.
In short, we slip into a constitutional Never Never Land and we make it real. This makes debate and analysis somewhat difficult, inasmuch as some of us are planted in one reality and some of us in another. Each of us is thinking that the others are delusional. The first time I read Spooner, I realized his arguments are unassailable. The Constitution by no stretch of the imagination lives up to the legal requirements for a contract, nor can one shore it up (legitimize it) by calling it a social contract that is "signed" by paying taxes or voting.
Was Spooner crazy?
Spooner at first seems crazy to deny the validity of the Constitution. What were all these Justices doing and thinking for two centuries? Why all the important constitutional debates with all their important consequences? What about all the voting and all the taxes and appropriations? What about the War Between the States? Was American history one long charade? The resolution of the conflict is that, although the Constitution is legally invalid as Spooner proves, it still has a very important impact.
The War Between the States made it self-evident that Americans could be compelled to support a government they did not want. Either the war was constitutional or it was not. If it was, if the Constitution allows this principle of compulsion, then it should be overthrown, Spooner argued. What good is the Constitution if it does not mean you can choose your own government? If the War was not constitutional, then the war had no legal justification under the highest law of the land. To defend both the Constitution and the War is to defend an instrument that opposes political freedom and self-determination (and surely opposes self-government). To rationalize the War and make it sound constitutional, one must find other means. For example, one can argue as Lincoln did that union now and forever is a constitutional principle. But this means forcing support of a government one doesn’t want, and how does that improve the welfare of those subjected to the compulsion?
Given that Spooner is correct, then we need a theory to understand this long-lasting illusion. The Constitution is real enough, but its actual functions in society are not what they are purported to be. We need an alternative theory to explain the origin of the Constitution and the form it took. Charles A. Beard provided such a theory in 1913, namely, that various financial, manufacturing, trade, and shipping interests brought about the Constitution and influenced its provisions. Beard’s theory has had its ups and downs. Initial reaction was quite negative. It then gained ground only to fall in popularity again since the 1950s. Charles A. McGuire recently empirically re-examines Beard’s theory and provides it with substantial support. Ideology also played a significant role in the Constitution’s construction, according to McGuire.
Gary North dramatizes the Beard theory by explaining that the Constitution is a fraud that benefited and continues to benefit elites in America. North notes that "anyone who discovers the true nature of the fraud cannot gain a hearing because the heirs of the victims dismiss him as a crackpot, either in general or else regarding this specific issue." He is correct. Spooner at first sight seems a crackpot. Beard drew fire from the President of Columbia University: "It is a travesty to dignify so unscholarly an adventure by the title of an economic interpretation of history," he said. Former President William Howard Taft criticized Beard’s work. Obviously, entrenched interests do not want a radically different view of reality to become popular. However, the Spooner-Beard case will gain a hearing over time as it is buttressed and deepened.
Spooner makes a strong legal case against the legitimacy of the Constitution. He also points to money-lenders as a key group that supports the states of Europe. Beard’s theory is appealing on several grounds. First, there are the facts of how the Constitutional Convention came into being and was conducted. Second, there are the facts of the Constitution’s content and how it vastly exceeded the Articles of Confederation. Why would a national government be recommended when the Convention was not charged to create one? Third, economic theory suggests we should follow the money trail and look for the beneficiaries of the Constitution. Even at the time, the Anti-Federalists recognized and identified who these parties were: potential officeholders, lawyers, potential judges, holders of the public debt, certain states, bankers, and certain types of businesses, etc. Economic theory does not rule out that the Constitution was put forward as a gift of kind-hearted and wise Founding Fathers, or that this motive impelled some or even all the signers. But if so, what were the reasons for this burst of generosity at that time? Why did the gift take the form of a national government? Why was it crafted in secret? Why was a high-pressure campaign adopted to get the Constitution adopted? Fourth, there are the facts of who the elites are that have run the American state since its founding. The dominant influence of men who run large businesses is undeniable. Fifth, we have the record of economic actions that the early administrations took on taxation, tariffs, tonnage duties, and public debt redemption. These benefited particular interest groups as well as helped create a strong national state which was the ideological aim of some Constitutional proponents. The gift theory cannot explain all of these facts in any plausible way. The Beard theory can.
Maintaining the fiction
One hundred and thirty-five years after Spooner, the state continues to stray further and further from the content of the Constitution. Not only is it the illusion we live under, but it is a hollowed out illusion. Why do we still maintain the fiction that the emperor has clothes? Many possible reasons, for example: (1) Spooner’s ideas are not widely known or accepted. (2) Although the document has no legal authority, the force of state lies behind it. (3) Important interests have a stake in maintaining the fiction. (4) People want to believe the world is just. See here. (5) People believe that the state promotes prosperity and security. (6) People fear rapid change.
At one time or another, I have adopted all of these hypotheses. They are not mutually exclusive. And there are others. For example, suppose that people actually know that the Constitution is really dead in major respects. They support it and the state because they believe that the government knows what’s good for us and legislates accordingly (or they believe the state provides prosperity and security). If this is true, it means that people can’t see harm when it is done, and that they have no theoretical clue that most laws harm society. I have held that seeing the harm is quite difficult for ordinary people. Spooner held that people were simply dupes. That theory has some substance. There is good psychological evidence that people believe in psychics even when their tricks are unveiled. There are those who say that people behave like sheep. They do whatever they are told. This is plausible, but too shallow. The deeper explanations for why they might behave in this way are economic, social, and psychological.
If the Constitution has no authority, then defenses of natural rights should first and foremost be directly in terms of those rights. Only secondarily should they be in terms of the Constitution. Consider the case of torture. President Bush can already torture if he can get away with it. He actually requires no authority because there is no one who can give him that authority. The Constitution and no law under the Constitution can give him that authority if that document has none itself. He only requires the power, that is, the capacity of torturing without anyone punishing him for it or making him bear any costs. The state has already done far worse. A state that obeyed the First Amendment ("Congress shall make no law respecting an establishment of religion") would not spend billions of dollars helping to establish a state in Iraq with a theocratic provision like Article 2 of the Constitution, which states "Islam is the official religion of the State and it is a fundamental source of legislation…" A state that could impose genocidal sanctions on Iraq that killed hundreds of thousands of children will have absolutely no qualms about torturing a few captives and will manufacture the law or legal right to do so, if it so wishes. If it does not so wish, it will probably be because of pragmatic reasons. Perhaps it is divided, or the time is inappropriate (political costs are too high), or it’s not worth doing, etc. But whatever law passes will probably not be because of the Constitution or principled adherence to Geneva conventions or any other moral law or natural rights unless and until those with such scruples gain the upper hand politically. There is no evidence that they have.
In the Spooner perspective, we merely need to recognize President Bush as the head torturer and murderer that he is. His aim in promoting torture may be what he says, at least in part. No doubt he has a number of motives. It is shocking to many (and to me) to see national news with a banner labeled "Torture Debate." This is only because we haven’t shed the illusion that the Constitution is about rights. The fact is that if Bush doesn’t execute the laws, he is not being unfaithful to his oath. Spooner shows at length that such oaths of office have no legal meaning. All three branches of our government have already betrayed the people’s trust innumerable times. The torture issue is one of the many power struggles among those who vie for running the state, with some like McCain having both a personal and political interest in the outcome. The Congress or some members of it for various political and pragmatic reasons want certain restrictions at this time and Bush doesn’t, or else they want to appear to want certain restrictions even if later on business goes on pretty much as usual. But since Congress has murdered so many already, no one can believe that they have suddenly gotten religion or re-read the Declaration of Independence. The outcome makes a practical and moral difference, to be sure, but it is not a constitutional, rights, or moral struggle even if it plays out within those contexts. The Constitution merely defines the rules of engagement of the powerful.
Constitutions are not what they seem to be. They are harmful institutions that place politics at center stage of a society and reinforce the state with all its attendant evils. Constitutions are a passing phase in mankind’s history, currently looked upon as a nostrum for mankind’s ills. They are snake oil, sold to the public and bought by the public. They are advertised as engines of prosperity and security, when the opposite is the case. Disillusionment will eventually set in. The time will come when mankind will shake off the superstition called constitutional government.
Spooner launched a legal attack on the validity of the U.S. Constitution. This did not bring it down, but the attack is not yet over. Charles Beard launched an attack on the Constitution’s moral authority by arguing that it was born to satisfy certain economic interests. Although this theory has truth in it, the Constitution survives it. I have stressed in several articles the consequentialist view that the Constitution has bad consequences for the general public and society. The state it supports destroys the society. Under some conditions, the state itself may bring down the Constitution simply by emasculating it to the point where the tyranny can no longer be disguised. But this route via dictatorship is hardly one we wish to travel any further along.
Peace and prosperity can only come within a society of justice and freedom, a society of responsible individuals who respect property rights. Our means of achieving these aims cannot be constitutions with elaborate political institutions and promises to ourselves for prosperity and order. Such promises can’t be met through political means, and in fact they are undermined by politics. Our means cannot be republics and democracies that institutionalize conflicts in society and exacerbate them, leading to the growth and centralization of power. Our means cannot be utopian dreams of perfecting ourselves or the world. What means are left but real self-governance exercised with restraint and broadly accepted canons of justice and rights?
Michael S. Rozeff [send him mail] is the Louis M. Jacobs Professor of Finance at University at Buffalo.