No U-Turns

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