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Source link: http://archive.mises.org/8795/who-killed-the-constitution/

Who Killed the Constitution?

October 17, 2008 by

The question posed by the title of this book raises a further question, as the authors are well aware. If the Constitution is indeed dead, why does this matter? American conservatives have in past days been accused of “Constitution worship”: why should we care whether actions of the government conform to this particular legal document? FULL ARTICLE


fundamentalist October 17, 2008 at 8:55 am

The whole point of the Constitution was to make us a nation subject to laws and not to the whims of men. The founders had suffered greatly under the arbitrary rule of monarchs. Those who have subverted the Constitution prefer the arbitrary rule of men to the rule of law. Who killed the Constitution? The American people, because they allowed dishonest men in power to do so. We deserve the government we have.

Brock October 17, 2008 at 10:55 am

“…subsequent Supreme Court opinions have never abandoned Holmes’s false contention that free speech must be balanced against other considerations.”

I see this a lot, but I don’t understand why. Brandenburg v. Ohio is the current controlling free speech case, is it not? Brandenburg (at least in the concurring opinion) goes to great lengths to repudiate the “clear and present danger” test in favor of “speech plus”.

“Speech plus”, as I read it, is entirely consistent with both “make no law” and property rights. Speech ceases to matter; the “plus”, an overt action with a violence test, is the required condition for an acceptable limitation.

What am I missing? Why is Brandenburg wholly ignored?

David Spellman October 17, 2008 at 11:19 am

There is a lot of love expressed for the Articles of Confederation on Mises.org, and a steady drumbeat of criticism for the Constitution. I believe that the Constitution is the most brilliant governing document ever written and put into practice. The weakness of our nation is that we did not adhere to its principles rigorously.

There is a growing movement to replace the Constitution. I would be extremely disappointed if Miserians were beguiled into supporting such an effort. We should work to resurrect the constitution and put its principles back into practice.

The enemies of the constitution would bring us something worse, not better. We would be better off befriending and defending the Constitution if we hope for a brighter future. In the near future we may be told there is a constitutional crisis. Let’s recognize the opportunity to overthrow an unconstitutional government rather than throw away a perfectly good blueprint for government.

Be enemies of the State and friends of the Constitution.

Richie October 17, 2008 at 11:52 am


I agree with you. While flaws do exist with the Constitution, I believe that it is one of the most remarkable documents ever created by men. However, the document has been butchered by “social justice” hacks and others who believe in a more centralized federal government. Jefferson must be rolling over in his grave.

David Gordon October 17, 2008 at 12:02 pm

I disagree with Brock’s account of Brandenburg v. Ohio. The concurring opinions of Black and Douglas do repudiate “clear and present danger”, but their view is not part of the governing per curiam opinion. That decision speaks of “inciting or producing imminent lawless action and . . .[being] likely to produce such action”, which is still a balancing test. It is not “speech plus”, if this means that the person prosecuted must himself act violently.

fundamentalist October 17, 2008 at 12:08 pm

The Constitution has already been replaced by arbitrary judges and criminal presidents. There is hardly a line of the Constitution that someone in government doesn’t violate today.

Brock October 17, 2008 at 12:09 pm


Thank you for responding. That clears up the questions I had, but brings up one more question.

If concurring opinions do not hold weight, how is it that dissenting opinions seem to?

darjen October 17, 2008 at 12:54 pm

David Spellman,
Being an enemy of the State and a friend of the constitution is impossible. I agree that we would be better off if the constitution were followed today. That’s why I donated to Ron Paul. But, that doesn’t remove the severe difficulties found therein, like creating a strong central government with the power to tax and regulate.

It’s not a perfectly good blueprint for government. It set the ball rolling for the beast we all suffer under today. We would have been much better off with the articles of confederation.

scineram October 17, 2008 at 1:18 pm

Ahh, that god awful document. What a failure, what an enabler of the empire! All clear thinking men even in those days knew what a danger it was, and that it was destined to end in such unlimited tyranny.

C. Evans October 17, 2008 at 1:23 pm

The Constitution is an egregious error and there were people at the time who warned us that the adoption of this document would lead to a centralized oppressive government. They were all correct. The idea that we can somehow go back and reclaim the true ideals of the founders is naive. The reason we have the oppressive State that we have is a direct result of this document. As Lysander Spooner said, “[the Constitution] has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.” Thus, we cannot be “enemies of the State and friends of the Constitution” for one cannot befriend the very document that initially created this evil State and is powerless to stop its growth.

Article 1, section 8, of the Constitution states “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” Congress has the power to tax without consent, i.e., steal, which was one of the chief complaints of the Declaration of Independence. It also has the power to decide what uniform is, what the common defense is, and what the general welfare is. Using Madison’s reply that Congress should stick to the duties listed in the Consitution is pie-in-the-sky wishful thinking. Just how are you to keep Congress from doing this?

An entity which can tax without consent and make laws without consent cannot be limited. Furthermore, the idea that voting can keep the government in check is even more naïve. If I have the power to tax and make laws, I can easily promise to steal money from one group of people and give it to another to get votes. I can also promise to make laws favoring one group of people at the expense of another. My power will grow as long as I wish it to. If you think that the three branches of the State are sufficient checks and balances, you are deceiving yourself. While the three branches may occasionally check each other’s powers, it should be clear that there is an incentive to collude and rob the people of their power because all three are part of the same centralized State; when the power of one branch grows at the expense of the people, the power of all branches grow at the expense of the people.

Those of you who think that the American people need only be educated in order to limit this government clearly underestimate the desire for freedom of the masses. In 1913, the people of this country passed the evil 16th Amendment allowing the State to rob them of their income from any source. They voted themselves into slavery. Yet I am to believe that the masses will somehow rise up and demand that the Constitution be obeyed? How can you expect the masses who seem to have no desire for liberty to accomplish this? As H.L. Mencken remarked, people want security and will trade off anything to get it.

Clearly the propaganda of the State has been extremely efficient in poisoning the minds of most Americans and they continue in their deception that this Constitution can somehow be enforced. But the Constitution does not grow fangs and bite people when government oversteps its bounds. It’s only a piece of paper and evil men will use it only when it suits their interests. Nullification and secession were options to limit the power of the State; however, that all ended in 1865.

I would recommend that those who still believe in the myth of the Constitution read the writings of the anti-Federalists and Hans Hermann Hoppe. Dr. Hoppe has several articles available on the Mises website along with his podcasts. His Democracy-The God That Failed is a must-read. So is his article, “The Impossibility of Limited Government.” I would also recommend Albert J. Nock’s essay, “Isaiah’s Job,” H.L. Mencken’s “Notes on Democracy,” and Etienne de la Boetie’s “The Discourse on Voluntary Servitude” to gain insight into the masses.

Brainpolice October 17, 2008 at 2:37 pm

Why not just stick with Spooner’s “Constitution of No Authority”? I think this constitution reverance is conservative nonsense.

Breckridge October 17, 2008 at 7:07 pm

\” Clever idea, the Constitution. Too bad it didn’t work. By now we should stop congratulating ourselves on it.

The 16th and 17th Amendments pretty well destroyed what was left of it, and with all due credit to Abraham Lincoln and Woodrow Wilson, the ovine electorate allowed Franklin Roosevelt and his successors to finish the job. \”

{– Joseph Sobran}

Andras October 17, 2008 at 8:02 pm

I agree with C.Evans and others. We can safely say the Constitution is unconstitutional. The whole body was written to invalidate the first sentence. The rest was easily done by mediocre top bureaucrats who were allowed to read anything and its opposite into it.
And the sheeple follows to the slaughterhouse.

Keith October 17, 2008 at 9:33 pm

All political cultures, the Constitution, anarcho-capitalism, monarchy, whatever, are dependent on the local populace recognizing its legitimacy and following the necessary norms. The Constitution worked quite well when it was generally recognized to limit government and the people both in and out of the government generally accepted the limitations as legitimate. Once those limitations became less recognized as legitimate and began to erode, fewer and fewer people thought this was a problem. This would be true for any political culture, even a non-government libertarian society.

The Constitution can be “saved”, but only if the majority of Americans go back to accepting and requiring the limits on the government. I’m not sure that’s a probable outcome. If the Constitution has failed, it’s because “We the People” let it fail.

Chad Rushing October 18, 2008 at 1:18 am

I agree with many of the other commentors in that the U.S. Constitution is definitely not an infallible document to be worshiped, especially with some of the amendments that have been made over the centuries for the direct election of senators, the Federal Reserve, and the Federal Income Tax. (Remember when they actually bothered to amend the Constitution before they tried something incredibly foolish or unethical?)

However, I do believe that actually heeding what governmental restraints the Constitution does spell out explicitly (ex. no fiat money, no unitary executive, congressional declarations of war) would be a huge improvement over the situation we have now in the USA … not ideal by any means but a noticeable improvement and a definite step in the right direction.

To use an analogy, if you cannot immediately stop a rampaging bull, at least try to get it back into its proper enclosure to minimize the ongoing damage it can cause. I think that is why Dr. Paul strongly advocated adherence to the Constitution despite freely admitting that it has shortcomings.

Chad Rushing October 18, 2008 at 1:49 am

In addition, I will have to agree with Keith’s comment above. In a way, it really does not matter what form of government you have and what laws are on the books when the rulers and the people have all totally thrown the Rule of Law out the window anyway and have created a free-for-all dominated by might and influence. What we have in this country is ultimately a people problem, a gross deficiency in good ethics and sound judgment.

That is why I strongly assert that all of our institutional problems (governments, banking systems, etc.) are ultimately due to the immoral and foolish actions of the people behind those institutions, even though the institutions themselves may facilitate such actions. You cannot fix the institutional problems until you address the people problem behind them.

To use an analogy, entire organizations have been created around stopping gun violence, but a gun cannot be held responsible for the immoral actions of the violent criminal who wielded it. Furthermore, if you take the gun away from the criminal, his violent tendencies will not vanish; next time, he will just come at you with a knife instead (as usually happens in gun-restrictive Japan). The same holds true of the crooked politicians and central bankers.

If an ethical, wise, and humble man like Ron Paul was appointed to the helm of the Federal Reserve, I imagine that the ongoing abuse of its powers would practically cease overnight, even if he was not allowed to outright disband it (as should be the case). What we really need at the end of the day is more people like him in our society.

John Delano October 18, 2008 at 6:18 am

Acknowledge the good in the Constitution and secede.

Acknowledge the good in the Magna Carta too.

C. Evans October 18, 2008 at 10:15 am

“Acknowledge the good in the Constitution and secede.”
The last time that was tried over 600,000 souls perished to “save the union.”

I agree with several commentators who acknowledge the people problem. It is true that the people behind these institutions are the most venal of mankind. But the violent nature of the State produces adverse selection. Men and women of good character have no interest in using coercion to run other people’s lives. Thus, they have no interest attaining the power of the State. Men and women such as Ron Paul who attempt to gain entry into the State as a defensive measure are hampered by their good character. Such individuals are these will never attain power in the highest positions of government.

On the other hand, demagogues, liars, thieves, and murderers have no such moral scrupples. They are willing and able to effectively deceive and bribe their way into power. Rather than appeal to our virtues, they tempt our vices. They cull our envy, our hatred, our fear and convince the masses that if they are given the power of the State they will protect them from these evils. The masses do not realize that it is these politicians who create and exacerbate the very evils which they claim to battle.

In a letter to James Madison, Thomas Jefferson said he would rather live a life of dangerous liberty rather than peaceful slavery. It should be clear that after 200+ years of Constitutional government, even our slavery is dangerous.

Anon October 18, 2008 at 4:08 pm

To argue that people have failed to uphold the Constitution is to say the Constitution is only as good as those charged with upholding it–which is to say the Constitution, per se, is powerless. If the Constitution is powerless it’s already dead.

Keith October 18, 2008 at 7:22 pm

Quote from Anon: “If the Constitution is powerless it’s already dead.”

The Constitution is only words on paper. Good words (mostly), but it never had any power other than what the people acknowledged and followed. It is (was) only “alive” as long as we follow(ed) it.

Al Barrs August 13, 2010 at 11:44 am

The northeast industrialists and northern U.S. House of Representatives began attacking the Constitution shortly after the American Revolutionary War. That happened because the Constitution required that House members be appointed according to the numbers of residents in each state. The South had a large population of slaves. The North had a large number of indentured servants. By the U.S. Congressional Importation Act of 1808 the entire Nation was prohibited from importing any additional slaves into the United States. Because of this Act, which the southern House delegation supported the South was stopped from buying any additional slaves from other countries, but not from northern slave owners. But, the northern states had no such restrictions on importing indentured servants. The northern industrialists had plans to greatly expand their industry in the North and into the new western territories and newly emerging western states. The northern shipping industry, who had been the primary importers of slaves from West Africa to sell to plantations in the South then began importing large numbers of indentured slaves from Europe to the northeast U.S. Northern industrialists refused to work freed slaves because they were considered untrained workers and they required trained skilled workers, hence the importation of European indentured servants. The importation of indentured servants after 1808 and industrial expansion into the West quickly translated in to a voting majority in the U.S. house of sympathetic northern House members. This situation in the House of Representatives effectively gave the northern House delegation a clear veto over any bills or legislation the southern House delegation proposed. Essentially the northern House delegation shut out the southern delegation from the legislative process. The southern delegation offered two bills that was rejected, voted against, by the northern House delegation that would probably have prevented the war that began in 1861 between the South and North. The bills were: 1) A bill to count the South’s slaves as whole people so far as the count went for adding House members to the states but the northern House members instead pass their own bill making slaves 2/3 of a whole person, and 2) a bill to require a 2/3 simple majority vote on all House bills. Both were defeated by the majority northern House delegation, who had 8 more votes in the House than the South. One can only believe that the opposition vote was to maintain a clear voting majority over the South by reducing the number of whole persons if all slaves were only counted as 2/3 a whole person. Remember there were over one million slaves in the South. The South was the first region of the new Nation to become wealthy from tobacco and cotton. The North was lagging behind but the industrial revolution was rapidly spawning factories and industries that would make the North wealthy also. But, the northern industrialists were impatient and needed capital to expand, develop and upgrade their industrial base. To obtain the capital they wanted the partnered with the northern House majority who pushed through a series of tariff acts that were lopsided, benefiting the North and taking from the South. Suddenly the South realized that they were in the same predicament the colonists were in when they demonstrated their dislike of high taxes imposed without representation on the colonies by Great Britain…the Boston Tea Party resulted. The South also saw that they had been completely shut out of the U.S. legislative process and that no change in the imbalance of the House delegation was in sight since they could no longer buy imported slaves while the North continued to import masses of indentured servants and freemen from Europe. The war of 1861 resulted…

That is when our Constitution began to crumble and our republican form of government began to be transformed into despotism and tyranny.


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