In fact I am willing to accept that a federal government can serve a important role. Namely; the only really ‘just’ role of government is to prevent a more fascist or totalitarian government to take it’s place. Nature abhors a vacuum and I think it is the same way with political power. History has proven that violence is effective in getting what one wants.. if this was not true then we would not be facing the increasingly fascist state that the USA is rapidly descending into.

So I am not against a miniarchists’s viewpoints on this matter. The only possible disagreement is that the constitution is not really enough and we need to improve it to remove the possibility of it being interpreted as a ‘blacklist’ of government powers rather then the much more favorable ‘whitelist’ that it should be.

If we can get to the point were we eliminate the income tax, eliminate the ability to have foriegn military bases, eliminate the power to control free trade, etc etc. Then I could be quite happy with a federal government.

This, on the other hand, I can almost agree with. Although not the “only” way, states have abrogated much of their rightful power, including their complacence in consenting to the 17th Amendment. One of the strategies of those of minarchist bent should be to reduce the Fed, and the President, to a mere shadow of its current self. In order for that to happen, political power must shift away from DC and towards state capitals and municipal politics.

No shit? Wow I think you have stumbled across something here that nobody has ever thought of before.

Imagine that.. people wanting to stand up for states rights. What a amazing concept.

I always wonder at the thought process of people with your world-view. Somehow you seem to think that any incidence of wrong-doing viewed from a perspective of more than a hundred years later, “proves” that everything else, before and after, must be tainted and invalid. I say this is simply the ol and well-worn trick of the ideologue; throwing out the baby with the bathwater.

I think you lack a intellectual capacity to understand what I even said. Because so far you have not given any indication that you did so.

Um…
Actually it’s a particular type of contract. It’s a peculiar form of contract between all the individual states and the federal government they are forming.

As with any contract unless different parties are willing to stand up and enforce the terms of the contract against the other party then all it ends up being is _just_a_piece_of_paper_.

> In fact, one of the primary motivations for the Federalists was to create the ability to join forces against armed men; the British, French and Spanish, to name a few.

This does not contradict anything I said at all. It’s all off in third base. A trip through the rose field. Utterly irrelevant.

Did I say they didn’t have any reasons to form a federal government?
OF COURSE NOT.
So why the hell are you bringing this up?

> Likewise, the entire point of a “police power” is to prevent armed gangs or even armed individuals from prevailing in a conflict.

Still completely irrelevant.

> Like many, you simply appear to ignore the parts of reality that don’t accommodate your ideological views.

You lack the ability to bring a cohesive argument.
Layering insults to your incompetence isn’t helping convince anybody of anything except maybe you are drug-addled.

I agree, most of the “living constitution” view serves to undermine the fundamental principles that, if strictly observed today, would yield a much more libertarian relationship between individuals, states, and the Fed.

The history of the Commerce Clause is a good example. The original purpose was to simply prevent states from taking monopolistic actions against other states. Now it has evolved into a federal “police power”, which was specifically and expressly reserved to the States under the original implementations of the Constitution.

Not only is Fed power to intervene in commerce now pervasive, but the so called “immigration wars” being fought between border states and the Fed are a conflict over the principle that even if the Fed does not do what it is obligated to do (secure the borders, control immigration), the states are powerless to act because the Feds have “occupied the field”. This is dangerous nonsense.

The piece of paper is the written agreement. It’s not the limitation to power.. it’s just paper. It can’t stop armed men from violating the laws.

The Constitution is not a piece of paper, any more than a contract is wood-pulp. Your views are a-historic. In fact, one of the primary motivations for the Federalists was to create the ability to join forces against armed men; the British, French and Spanish, to name a few. Likewise, the entire point of a “police power” is to prevent armed gangs or even armed individuals from prevailing in a conflict. Like many, you simply appear to ignore the parts of reality that don’t accommodate your ideological views.

Even in the world of Ancap utopian dreams, PDAs exist to stop armed men with other armed men. In any case, the Constitution is an agreement made between men in their times and in their historical context, to structure the distribution of this power in a way they felt best avoided the problems of concentration of power that they had personally experienced. It turns out, they were some pretty smart mo-fos, luckily for us.

Only states enforcing their side of the agreement could keep the Federal power in check.

This, on the other hand, I can almost agree with. Although not the “only” way, states have abrogated much of their rightful power, including their complacence in consenting to the 17th Amendment. One of the strategies of those of minarchist bent should be to reduce the Fed, and the President, to a mere shadow of its current self. In order for that to happen, political power must shift away from DC and towards state capitals and municipal politics.

That means, though, that individuals will actually have to take personal responsibility for their political fate, the lack of which explains how and why we have arrived where we are today.
People like you, who just whine about how unfair it all is, represents a characterization of this deficit in the “constant vigilance” part of the liberty equation. In general, I think it is just way too much work. Pouting is much easier and more immediately gratifying.

I always wonder at the thought process of people with your world-view. Somehow you seem to think that any incidence of wrong-doing viewed from a perspective of more than a hundred years later, “proves” that everything else, before and after, must be tainted and invalid. I say this is simply the old and well-worn trick of the ideologue; throwing out the baby with the bathwater.

I have said before that one way of understanding wisdom is the ability to distinguish one thing from another.

Can you distinguish between those historical acts that offend our current moral sensibilities, and the fundamental concept embodied in the Constitution? Warning, it is not easy, and does not lend itself well to sloganeering.

Shortly there after the ruling political party was happy throwing people in jail for campaigning against them. To many of the early politicians that were present for the signing of the constitution the ‘freedom of the press’ only meant that you could not put government censors in the publishing room to prevent things from being published… You had the right to say whatever you wanted, but that didn’t mean that the government couldn’t put you in jail for saying it.

And they did just that. Even Thomas Jefferson did not object to the government throwing people in jail for publishing literature that was critical of the ruling party on the grounds that it violated the first amendment. Instead he felt it was the state’s right to not enforce federal laws that they disagreed with and that was the real check on federal power.

The piece of paper is the written agreement. It’s not the limitation to power.. it’s just paper. It can’t stop armed men from violating the laws. Only states enforcing their side of the agreement could keep the Federal power in check.

I, for one, believe that while it may have been misguided, ultimately, the purpose of the Constitution has been to defend liberty, and to the extent that it has cemented an American Ideal of liberty into the hearts of the people, it has worked somewhat. And I, for one, can’t help but see the irony of how the doctrine of “living Constitution” is used to kill it. After all, how can we claim that a document is alive, when its very words are twisted to justify actions it was expressly written to prevent?

Our “present legal system” is a broad brush indeed.

There were a couple of importat showdowns you have to figure into your thinking about this subject.
In 1913, we got the Federal Reserve Act, the 16th Amendment, (income tax) and the 17th (direct election of Senators). The timing is no accident.

During FDRs term, he was overulled by the SCOTUS on some of his socialist price/wage control schemes, and threated to “pack the court” if they wouldn’t get on board. The court backed down, and we haven’t had a decision that didn’t serve to turn the Commerce Clause into a “police power” since Lopez.

The Obamacare cases are historic in that context.

By the way, lawyers do write the laws. Unfortunatly most are lobbyists, not Senators.

The prime moral imperrative is consent. Informed consent.

It seems to meyYou just don’t like the idea of being a member of society. Is it that anarchistic independence, “all men are an island” kind of thing? What Eric called a “M/R fundamentalist”?

If you undestood anything about the structure and interconnectedness of the Constitution, you might understand the reverence some of us have our founders, warts and all.

I get your reference to “M/R fundamentalist”. Lot of that going around.

I disagree with your second point, though. The constitution has a high moral authority, in that it is the fundamental set of principles which define our governance system, and as such is unique in the world.

Most who dismiss it out of hand, like Hume here, have not bothered to look into it with any great attention. It reminds me of the Rothbard quote that refers to it being understandable that so few understand economics, but inexcusable to have strong opinions about economics based on that lack of understanding.

Hume’s comment is equivalent to saying that something should be ignored because it is “old”.
Ignorance is bliss, I guess.

“Supposed?” Our present legal system is the logical outcome of the Constitution as amended. If this was not the intent then the writers screwed up.

Maybe lawyers should not be permitted to write or interpret the laws. Let the politicians write their bottom line intent. Then experts in English grammar should write the legislation and logicians operating as judges interpret the letter of the law.

I would have to disagree with this statement. One *need not* look at a constitution with reverence. At the risk of violating blogging etiquette, here is a post of mine in which I take a third party stance and defend originalist methodology against a claim that it is *necessarily* reverential towards the past or “the community’s existence.”

http://www.reasonabledisagreement.blogspot.com/2011/01/re-originalism-and-freedom_11.html
(I am releatively new to blogging, so I would appreciate it if someone would let me know if I am out of line by linking to my own blog, thanks!). Here is the relevant discussion:

Also, an originalist interpretive methodology does not *imply* a reverence to the past vs. the denial of authority to the present, nor does it imply a vacuous conception of freedom. At most, it implies a kind of distrust for government and legal officials in general. By anchoring the interpretive object in concrete rules, the originalist methodology seeks to limit the discretion of the interpreter (i.e., the norm applier). If the originalist was necessarily preoccupied with the authority of the “founding generation,” she would recognize that many clauses of the Constitution are standards rather than rules (e.g., “cruel and unusual punishment”). Standards require certain evaluative judgments be made downstream by the norm-applier rather than the norm-creator. Thus, the norm-creator, by positing a standard, indicates the intention that evaluative judgments are to be made by the norm-applier. Originalists evince a certain distrust for legal officials by re-interpreting standards into rules (“cruel” means x, y, and z). This distrust may be the result of a variety of different political or pragmatic beliefs. For example, one may believe that (1) the point of having a fundamental legal rule (i.e., a constitution) is to lock in certain political-moral principles that cannot be changed by the whim of those currently in office, (2) the point of having “law” in general is to authoritatively settle political-moral disagreement, and (3) by granting officials wide discretion in interpretation, the point of such a system is undermined because we (the originalist) do not trust officials to interpret the norms in accordance with principles determined to be settled. In such a situation, one may argue for an originalist methodology without any reverence for the past.

Notice that this argument proceeds without denying the moral right of a generation to alter the core principles by which they are governed. Rather, it assumes that a “society” reproduces itself over many generations, that such a society is never made up of a single generation, and the belief that the whole point of establishing a fundamental rule is to authoritatively settle certain disputes such that the fundamental structure of the system need not be in constant flux. Thus, in the event that a generation desires a change of the core principles that the society is governed by, it requires that a vast majority of such a society to agree. The reason for this super-majority requirement is that it permits the fundamental rule of the system to function as a fundamental rule.

There is one further point worth noting. Alternative interpretive methodologies do not imply an added appreciation for the moral authority of a generation to determine the principles by which they are governed. The Dworkinian interpretive methodology is decidedly anti-democratic and places great weight on the past.

I believe that the crux of the political rhetoric is not to be found in any fundamental belief regarding democratic authority and the moral right to determine the fundamental principles of a system. Rather, interpretive methodologies are argued for based on political expediency. If republicans believe that, based on the current judicial climate, judges are likely to overturn their favored legislation, they will argue for whatever interpretive methodology reins in the courts. If democrats believe that, based on the current political climate, state legislatures are likely to produce laws contrary to their favored policies, they will call for an interpretive methodology that produces the results they desire. It cuts both ways and both sides are fraught with contradictions.

I disagree with you, however, when you conflate legal validitiy with moral/political legitimacy. Similarly, the normative force in a law proscribing, e.g., murder is not the *legality* of the law but its content. The concept of political obligation implies a content independent character into the mix. To better understand political legitimacy, political authority, and political obligation, we must first understand what we mean when we talk about “political obligation” and the “obligation to obey the law.” In many cases, it is obvious on its face that we have a moral duty to do what the law requires. For example, the criminal law characteristically forbids murder and rape, assault and fraud. It is clear that in these circumstances, we have a moral duty to do what the law requires. But to analyze the issue of political obligation and political legitimacy in this light is to misconstrue the project. In these circumstances, there is clearly an *external* moral obligation not to, e.g., rape and murder, and this moral obligation is contingent in its relation to the content of the law in question (i.e., law’s definition of the act of rape and murder). In other words, I have a moral obligation not to murder my neighbor *regardless* of whether a law exists proscribing such conduct. In some sense, then, we are morally obligated to *comply with* these laws. The question of political obligation, however, is the question of a duty to *obey*, and the concept of obedience is fundamentally different from that of mere compliance.

Obedience is intimately connected to the source of a command or rule, as opposed to its content. Thus, to “obey” entails adding a content-independent element to the mix. In the case of law, therefore, to say that one has a moral obligation to obey implies that one has a moral duty to act as the law requires because the law requires it. A. John Simmons provides a clear statement of the issue: “A moral duty to obey the law would be a duty to do as the law requires because it is required by valid law (or because of what its being valid law implies), a duty to obey the law as such, not to do as it requires just insofar as it happens to overlap with independent moral duties (which should be discharged whether or not they are also made legal duties).” (Simmons, The Duty to Obey and Our Natural Moral Duties, in CHRISTOPHER WELLMAN & A. JOHN SIMMONS, IS THERE A DUTY TO OBEY THE LAW? 95 (2005)).

The obligation to obey implies that there is moral weight in the mere fact of legality. It is “because it is the law” that generates moral force, not the content of the act prescribed or forbidden. More generally, to claim the existence of political obligation is to claim that there is a moral duty to comply with the dictates of the political process because it is the outcome of the political process. Therefore, the question of political obligation is whether there is a moral obligation to obey the dictates of the political process.

As such, the *source* of a law rather than the mere fact of legality is fundamentally important to its status as legitimate. It is here that I lament the reverence shown towards the framers of the U.S. constitution.

The Constitution isn’t just an essay. It was the law. Every judge, president and Congressman takes an oath to uphold the Constitution. By doing so they affirm that the Constitution is still the law of the land.

If people don’t like what the Constitution says, they can always amend it, and have many times. Amendments are the lawful way to keep the Constitution in step with changes in society.

Without the Constitution and its proper interpretation, we are left with nothing but the will of the majority in determining law. So if the majority decided it was OK to enslaves blacks again or move Indians to another country, or imprison all the Japanese, that would be perfectly fine because nothing restrains the will of the majority

Also, no matter how small the group that founded this country was, there exists a very large group of people in modern America who revere this document, because they recognize that it was written with the intention of protecting the freedoms they see being trampled every day. The role of the people is to protect the Constitution, and that is what we’re trying to do, because otherwise, we have a government that can operate with few restrictions, and we have the inevitable consequence thereof, which is tyranny.

Yes, ultimately, the Constitution is just a document, and it’s up to what the people today say, but plenty of people today are saying that they would like to keep their original Constitution, please, and no one has a right to declare those people or their opinions invalid, or to say that they should submit to the opinions of others. That attitude is fundamentally in violation of the concept of freedom.