Don’t Go Back to the Original Constitution

A great many Americans who are dissatisfied with various facets of America’s political system, laws, rights, and justice system think that a solution is somehow to go back to the original Constitution. They do not understand that the original Constitution is a major cause of the present woes and troubles. One man who recognized and explained this and related developments many years ago is Albert Jay Nock in his 1935 book, Our Enemy the State.

My intent in what follows is to present a few of Nock’s important ideas in brief statements. All occasional observations of my own are placed in brackets.

Every increase in State power necessarily accompanies a decrease in social power.

[Social power means voluntary and private social relations, including associations and economic exchange.]

Increases in State power reduce the disposition among people to use social power and indoctrinate the idea that social power is no longer called for.

As State power increases, private enterprise decreases.

The State uses contingencies of crisis and misfortune to increase its power, which in turn develops the habit of acquiescence in the people.

The centralization of power in Washington and in the hands of the Executive are signs of the increase in State power in America, as are the expansion of State bureaucracies and the erection of poverty into a permanent political asset to politicians.

When the State enacts “progressive” social legislation, this increases State power and reduces social power.

The State in America was brought into being in 1789 by a coup d’état.

The American system is nominally republican but actually imperial. The power of the ballot is empty. Parties compete for control of State power. They do not compete on grounds of actually reducing State power.

The differences between Communism, Fascism and National Socialism are superficial in that they all involve an advanced degree of State power with correspondingly low degree of social power.

State power advanced greatly (to totalitarian degree) in Communist Russia, fascist Italy and Nazi Germany. The conversion of social power into State power has not yet advanced as far as these countries in America. The accumulation of State power in America has been relatively noiseless, unalarming to the people and unspectacular as opposed to violent and spectacular.

As long as American politicians intone phrases (“poetic litanies”) about freedom, democracy and rights, State power can grow and Americans “remain indifferent to their correspondence with truth and fact.”

The average individual is incurious toward the State, accepting it as he does the atmosphere or as he accepted the Church in 1500 when it was very strong and the State very weak.

The great advance in State power should lead us to question the nature of the State itself and not merely to investigate changes in its form (as from colonial to monarchical, monarchical to republican, republican to democratic, republican to national socialist, monocratic to collectivist, etc.). Otherwise, we simply exhibit an unquestioned acceptance of the State on its own terms.

Government conceptually is not the same as the State.

Government, as Thomas Paine explained, arises from society, its design and end being freedom and security. In this view, government has but two laws “the first being, Hurt no man, and the second, Then do as you please; and that the whole business of government should be the purely negative one of seeing that this code is carried out.”

The Declaration of Independence has the same understanding as Paine, which is that to secure rights, governments are instituted among men and derive their just powers from the consent of the governed.

Government does not arise from conquest and confiscation. The State does.

“The positive testimony of history is that the State invariably had its origin in conquest and confiscation. No primitive State known to history originated in any other manner…Moreover, the sole invariable characteristic of the State is the economic exploitation of one class by another…every State known to history is a class-State.” Conversely, where conquest and confiscation were possible but would have brought no economic gain, the State did not arise.

Whereas government’s nature is to secure rights to the individual by “strictly negative intervention”, the State “both in its genesis and by its primary intention, is purely anti-social. It is not based on the idea of natural rights, but on the idea that the individual has no rights except those that the State may provisionally grant him.” [The coup d’état brought about with the U.S. Constitution was incomplete, involving, among other things, the Bill of Rights as a compromise. The subsequent gradual emasculation of the Bill of Rights is consistent with the growth of State power and Nock’s statements that the State is anti-social and not based on natural rights.]

“Taking the State wherever found, striking into its history at any point, one sees no way to differentiate the activities of its founders, administrators and beneficiaries from those of a professional-criminal class.”

“Republicanism permits the individual to persuade himself that the State is his creation, that State action is his action, that when it expresses itself it expresses him, and when it is glorified he is glorified.”

“There are two methods, or means, and only two, whereby man’s needs and desires can be satisfied. One is the production and exchange of wealth; this is the economic means. The other is the uncompensated appropriation of wealth produced by others; this is the political means.”

The State, in any form, is “the organization of the political means”. Every State engages in exploitation using power. [The feudal-State, the church-State, the collectivist-State, the landlord-State, the merchant-State, the proletarian-State, the democratic-State, the banker-State, the intellectual-State, the financier-State, the technocrat-State, the military-State, the elite-State, the corporate-State, etc. all involve a minority exploiting a majority, with the means and incidence of exploitation differing among them.]

The State’s organization for exploitation necessarily involves corruption and a gulf between private ethics and State-ethics.

Beyond a certain point, the depletion of social power by the State cannot be checked and leads to disintegration of society and civilization.

In America, the Puritan influence gave rise to a merchant-State. Its rationale had to accommodate individualism, and it did this through the Declaration’s doctrines of natural rights and popular sovereignty. These, however, came into conflict with the desire of the merchant-enterpriser for a State that would benefit him, and not for a minimal rights-protecting government:

“He was not for an organization that should do no more than maintain freedom and security; he was for one that should redistribute access to the political means, and concern itself with freedom and security only so far as would be consistent with keeping this access open. That is to say, he was thoroughly indisposed to the idea of government; he was quite as strong for the idea of the State as the hierarchy and nobility were. He was not for any essential transformation in the State’s character, but merely for a repartition of the economic advantages that the State confers.”

The earliest settlers in America, whatever attachment they may have had to local government or to civil democracy, could not indulge it because “they were in bondage to the will of an English trading-company”. It “was actually an autonomous State.” Nock quotes historian Charles Beard “…every essential element long afterward found in the government of the American State appeared in the chartered corporation that started English civilization in America.”

Nock writes “The State in New England, Virginia, Maryland, the Jerseys, New York, Connecticut, everywhere, was purely a class-State, with control of the political means reposing in the hands of what we now style, in a general way, the ‘businessman’”

“One examines the American merchant-State in vain for any suggestion of the philosophy of natural rights and popular sovereignty.”

“By way of summing up, it is enough to say that nowhere in the American colonial civil order was there ever the trace of a democracy. The political structure was always that of the merchant-State; Americans have never known any other. Furthermore, the philosophy of natural rights and popular sovereignty was never once exhibited anywhere in American political practice during the colonial period, from the first settlement in 1607 down to the revolution of 1776.”

American enterprisers focused heavily on land and land speculation from the outset. The causes of the colonial revolution of 1776 that are assigned in schoolbooks are trivial. The main causes were, first, “the attempt of the British State to limit the exercise of the political means in respect of rental-values.” It did this in 1763 by forbidding “the colonists to take up lands lying westward of the source of any river flowing through the Atlantic seaboard.”

Most land speculation was done through companies who secured a land grant from the State and then sold it off to settlers. Many of the founding fathers were land speculators, including George Washington, Patrick Henry, Benjamin Franklin, Timothy Pickering, Robert Morris, James Wilson and Samuel Adams.

The second cause is simply that colonists wanted to have for themselves the exploitation benefits that were accruing to the British State in such areas as ship-building, freight transport and many trades. What better way than to erect their own State?

Whatever noble government protective of rights that the Declaration suggested, the influential and leading colonists were after a State, that is, “an instrument whereby one might help oneself and hurt others; that is to say, first and foremost they regarded it as the organization of the political means.”

“There was no idea of setting up government, the purely social institution which should have no other object than, as the Declaration put it, to secure the natural rights of the individual…”

Jefferson’s idea of popular sovereignty, local government and self-government played no part in the State that was set up in 1789.

The U.S. Constitution did not place the principles of Paine and the Declaration concerning government into practice. To the contrary, instead and intentionally, it set up a State, and a State that could become more and more powerful over time.

The Constitutional Convention which was supposed to revise the Articles of Confederation, which did not provide for a State, met in secret and devised a strong central State. Instead of requiring unanimous approval of all 13 states, as it was supposed to, the Convention called for the approval of 9 of the 13.

In this way, a small group more or less suddenly deposed the existing establishment under the Articles and managed to get it replaced with another, the State still in existence to this day, the one that the Constitution calls the “United States of America”.

The “government” set up under this Constitution to do the work of the State, that is, to bring into effect the political means and exercise political power, was not from its birth a government consistent with the Declaration.

“Of all the legislative measures enacted to implement the new constitution, the one best calculated to ensure a rapid and steady progress in the centralization of political power was the Judiciary Act of 1789.”

John Marshall was appointed in order to assure control over law-interpretation and law-making by a small and centralized body so that the exploiters could control the exploited. “Since 1800, therefore, the actual mode of the State in America is normally that of a small and irresponsible oligarchy!”

Between 1781 and 1789, after the Revolutionary War, the 13 provinces became 13 States. Under the Articles of Confederation, “administration of the political means was not centralized in the federation, but in the several units of which the federation was composed. The federal assembly, or congress, was hardly more than a deliberative body of delegates appointed by the autonomous units. It had no taxing-power, and no coercive power. It could not command funds for any enterprise common to the federation, even for war; all it could do was to apportion the sum needed, in the hope that each unit would meet its quota. There was no coercive federal authority over these matters, or over any matters; the sovereignty of each of the thirteen federated units was complete.”

Within each State, a scramble for the political means began, the objective being to rob the consumer. There was an “insensate scuffle for State-created economic advantage…”

“All that interests us is to observe that during the eight years of federation, the principles of government set forth by Paine and by the Declaration continued in utter abeyance. Not only did the philosophy of natural rights and popular sovereignty remain as completely out of consideration as when Mr. Jefferson first lamented its disappearance, but the idea of government as a social institution based on this philosophy was likewise unconsidered. No one thought of a political organization as instituted ‘to secure these rights’ by processes of purely negative intervention – instituted, that is, with no other end in view than the maintenance of ‘freedom and security.’ The history of the eight-year period of federation shows no trace whatever of any idea of political organization other than the State-idea.”

I end the summary here.

The picture presented by Nock runs something like this. To whatever extent the American Revolution stood for rights, a government that protected these rights and consent of the governed, these did not result from the Revolution. Americans had been used to the notion of the merchant-State prior to the Revolution, indeed from the earliest colonial times. A small clique of men who were themselves often merchants and engaged in land speculation brought about a central State in 1789, along the lines of what had been the practice up to 1781 and also between 1781 and 1789. They did so by a coup.

The Constitution made some concessions in the Bill of Rights to gain acceptance. However, the groundwork had been laid for a State. A State is the organization of the political means, that is, an unproductive system by which one class, usually a minority, has the power and means to exploit other classes, usually in the majority.

Going back to the Constitution is a non-starter for anyone who is serious about such ideas as self-rule, self-government, the protection of rights, consent of the governed, voluntarism, local democracy, libertarian law, a watchman government, popular sovereignty or other such related ideas that eschew the State. The Constitution sets up a State. The Constitution has many provisions that work toward the centralization and augmentation of State power, in opposition to rights, liberty and social power.

Americans cannot possibly go back to the original Constitution, nor should they even consider doing so.

Going back is out of the question because the Constitution was never devised in the first place to promote rights and self-rule. It promoted oligarchic rule.

One may seek out ideas from the past that eschew the State and promote rights, but the only ways to proceed are toward their implementation and into the future. This requires, among other things, to see clearly what our history has been, to stop glorifying the State and political means, to see the State history of violent exploitation for what it is, and to stop listening to the ministers and propagandists of the State. And, along with Nock, we need to see clearly that the Constitution cannot be regarded as a document to guide us politically if we want progress.