Head Banging or the Constitution

Recently by Gary North: You Are Washington’s Collateral



I am an Old School Presbyterian Calvinist, a position so conservative within Presbyterian Calvinism that it was relegated to the fringes after 1870. And if you ask me, they were kind of squishy.

With respect to politics, I voted for Goldwater in 1964. In 1966, I voted for William Penn Patrick instead of Ronald Reagan in the race for the Republican nominee for governor of California. I thought Reagan was too liberal.

I was a speaker at the National Affairs Briefing Conference in Dallas in 1980, which launched the New Christian Right.

I sent my children to Christian day schools.

With this as background, I want to present my case for Constitutional social conservatism.


I begin with a premise: “If a federal law is not in conformity to the judicial principles and precedents in American colonial law in 1788, it is unconstitutional, unless a Constitutional amendment has authorized it.” This is simple to understand. It means that the Constitution was intended by the Framers to be the source of fundamental law restricting politicians and judges who hold office in the United States government. The Constitution was ratified by voters on that basis in 1787-88. That which is not authorized by the Constitution is prohibited.

Conservatives say they believe this. But do they?

The Constitution of the United States does not authorize the following:

1. Federal laws against pornography2, Federal laws against alcohol3. Federal laws against drugs4. Federal laws against homosexuality5. Federal laws against abortion

Social conservatives must decide: federal laws prohibiting any of the Big Five vs. Constitutional law.

The Constitution of the United States also does not authorize the following:

1. Federal laws legalizing local pornography2, Federal laws legalizing local alcohol3. Federal laws legalizing local drugs4. Federal laws legalizing local homosexuality5. Federal laws legalizing local abortion

Social liberals must decide: federal laws legalizing any of the Big Five locally vs. Constitutional law.

The two groups are generally agreed: Violate Constitutional law. This is the problem for American liberty. American politics is a contest over which group gets to decide which Constitutional restraints to ignore.

This is not how the two groups come to their donors. Each group pledges to extend justice. Each group blames the other for undermining the Constitution. Both groups are correct.

The social conservative says he favors local initiative. Then he votes for Washington politicians who interfere with local practices.

The social liberal says he favors national justice. Then he votes for Washington politicians who interfere with local practices.

The social conservative is inconsistent. The social liberal is consistent. So, the social conservative politician, when in office, attempts to pass laws that set legal precedents for the social liberals to use in the next election cycle: extensions of federal power. Then, in some future election cycle, the social liberals repeal the conservative laws by passing new laws that extend the power of the federal government. The new laws make illegal local practices that social conservatives favor. What the politicians do not do in this regard, the federal courts do. In both views, the federal government becomes messianic. It becomes a means of implementing federal control over local practices. We have seen this in action ever since 1788. It has done what the opponents of ratification said it would do, but on a scale undreamed of by the Anti- Federalists.

The social conservative goes to Washington vowing to bang heads locally. So does the social liberal. This question does not occur to the social conservative: “How much federal power must we consent to in order to bang heads locally?” This question occurs all the time to the social liberal. He has an answer: “More.” When push comes to shove, this is the also the traditional social conservative’s answer.

So, the social conservative finds himself defending the extension of federal power. He insists that this is for a good cause.

Yet here is the great irony: the word “social” means “voluntary.” The historic position of American conservative political theory is this: The state is not society. The historic position of the social liberal is this: The state best represents society. We hear of “social justice.” This is a code phrase for “welfare state.” We hear of the Social Gospel. This is a code phrase for “welfare state.” Liberals say “social,” but the really mean “state.”

In practice, so do social conservatives. Officially, they defend free association, but when push comes to shove, they join with liberals to vote in favor of an expanded federal government. When it comes to assessing the power of the state, both groups say “more.”


This is the representative case. Would a socially conservative Congressman vote for a law restricting pornography? After all, it crosses borders.

The question that I raise today is this: “How can you regulate pornography and leave the Internet free?”

The pornographic materials on the Web are close to unlimited. It costs nothing to upload it. It costs nothing to download it. This is driving the pornographic movie industry out of business. As the afficionados say, “Smut yearns to be free.”

How can the government stop the spread of essentially free digits? At what cost? I don’t mean financial cost. I mean cost of lost liberty.

Censorship was always based on control over the physical properties of the media. It took printing presses. It took paper and ink. It took distribution channels. It took retail outlets. The technique: Follow the money. But when there is no paper, no ink, no printing press, and the distribution channels are outside of the jurisdiction of any specific national government, what is the technology of censorship? Ask Hosni Mubarak.

The cost of prohibiting something that is highly demanded and is free to the customer approaches infinity.

So, how do we stop the spread of pornography? By self-government.


Nationally, we have been down this road. Prohibition gave the criminal syndicates the money they needed to finance their entry into the other areas of sin. It made the crime syndicates what they are today.

What stops the spread of alcohol? Self-government.

There are local laws against alcohol There are dry counties. I used to live in one in Texas. At the edge of the county’s borders on all sides were liquor stores. But the voters remained committed to prohibition.

What should Congress do about the legalization of alcohol? Nothing. What should Congress do about dry counties? Nothing.


What applies to alcohol applies to drugs — all drugs. The analytical principles are the same. So are the legal principles.

What should the federal government do to stop the spread of hallucinatory drugs? Shut down the Department of Education. The biggest drug emporium in any zip code is the public high school. I have written about this here”How to Win the War on Drugs.”


What does the Constitution have to say about sexual behavior? Nothing. About marriage? Only this: how to structure the tax code. My recommendation is simple: get rid of the graduated income tax. That would end tax discrimination for or against marriage.


Here, the federal government has a position: there can be no laws against abortion. That was a Supreme Court decision.

What is the Constitutional way to deal with this? Simple: have a 50% plus one vote in each branch of Congress to remove the issue of abortion from the jurisdiction of the Supreme Court.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make (Article III, Section 2).

The President has no say in this. Neither does the Supreme Court. Anyone who wants to know if this is the correct view of this section should research Ex Parte McCardle.


Social conservatives need to decide: head-banging or the Constitution.

Social liberals want to free up head-banging in these five areas, so as to have more money to spend on head-banging in the areas of federal regulation of the economy.

The correct agenda for social conservatives is simple: vote for Congressmen and Senators who follow these rules: (1) Constitutional authorization of all laws; (2) reduced taxation; (3) budget in surplus; (4) debt reduction; (5) de-funding of the executive. In one phrase: Shrink the federal government. There is only one social conservative who favors this agenda.

It isn’t Newt Gingrich.

January 7, 2012

Gary North [send him mail] is the author of Mises on Money. Visit http://www.garynorth.com. He is also the author of a free 20-volume series, An Economic Commentary on the Bible.

Copyright © 2012 Gary North