Monday, 8 March 2010

A beer and a Constitution, please

OVER A BEER the other day I was having a discussion with someone about the US Constitution.

All we need for freedom, said my drinking companion, is to introduce the American Constitution to New Zealand, and we’d be sweet.

Not so fast, I responded.  Great as it still is  (even when reinterpreted by activist judges through the drivel of a “living constitution”) there were gaping holes in the original constitution that allowed big governments to drive a fleet of coaches and whole stables full of horse through what were supposed to be constitutional restraints on the growth of big government.

“Like what?” asked my companion.  “What sort of loopholes?”

Well . . . in Article 1, Section 8 there are these sundry invitations to abuse which have received an enthusiastic RSVP from statists ever since:

  • There’s the “general welfare” clause (“The Congress shall have the power to … provide for the common Defense and general welfare of the United States”), which has been used to grant to the Federal Government virtually all powers by the simple redefinition of the concept “welfare.”
  • The “interstate commerce clause”  (“The Congress shall have the power to … regulate Commerce with foreign Nations, and among the several States”) which has been transformed from granting the government the simple power to “regulate” foreign and interstate trade (i.e., to help it work like clockwork by administering weights and measures and the like), and instead to dictate what and when trade may happen.  The explosion of the “ABC” regulatory agencies constructed by Franklin Roosevelt during his “constitution revolution” of the 1930s showed just how easy it was to ride a truckload of bureaucrats through this one.
  • The “post office and the roads” clause (“The Congress shall have the power to establish Post Offices and post roads”)  which insanity surely speaks for itself.
  • The “whatever you feel like” clause  (“The Congress shall have the power to … make all laws which shall be necessary for carrying into Execution the foregoing Powers …) which has, let’s face it, been liberally reinterpreted to mean “Congress shall have the power to … make all laws which they feel should be necessary.”

Better to remove these invitations to abuse altogether, and to make things clear add a new clause making things crystal clear:

    “Congress shall make no law abridging the freedom of production and trade.”

Even that on its own would help.

AND THEN THERE is the “States Rights” amendment in the Bill of Rights (Amendment X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”), which on its own is both wrong and downright nasty.

Wrong, because

  1. there is no such thing as “collectivized ‘rights’” that are anything other than “the rights of its individual members”—and
  2. the failure to limit the powers opened the door to suggesting “implied powers” that might be delegated to the Feds.

And nasty because the inclusion of so-called “states’ rights” was simply a compromise made by the writers of the constitution to allow slave-holding states to continue this barbarity in a nation otherwise devoted to liberty. “The elevation of so-called states’ rights [was] in practise the right to keep slaves.’

Doing some deletion and adding the word “expressly” would improve things, making it read:

    “Powers not expressly delegated to the Federal Government by the Constitution are reserved to individual citizens.”

And here are two other additions that should be considered.

  1. A Term Limits rule. which gives self-important blowhard politicians something to do all day (i.e., arguing that this or that law should not expire at midnight next Friday), and stop them doing it by buying taxpayers’ votes with their own money.
  2. A “Single-Subject” rule, restricting bills to one subject each, prohibiting so-called “omnibus” bills which slip in all sorts of off-piste chicanery.

NOW, NATURALLY I’D prefer we go the whole hog and institute a completely rewritten constitution, complete with a new Bill of Rights’ and a ‘Bill of Due Process’—along with some ‘Notes on the Bills of Rights and Due Process’ to avoid wilful misinterpretation of the declared intentions of each of these--but until we approach a culture that understands that manufacturing new “pseudo-rights” (such as so-called rights to a job, to health care, to housing, to a “fair” wage, etc.) only steals genuine rights, that’s far too dangerous a place to even tread.


  1. one of the arguments put forth in support of so-called state rights is that at least on the state level, there are less politics involved in changing the system. whereas on the federal level, it is almost impossible to remove anything once it has been set in place.

  2. The States' "rights" nonsense is still a handy device for politicans to fudge things.

    Case in point, the "libertarian" Ron Paul who opposes abortion - and gets out of his muddle (or tries to) by saying it's a matter for state government instead of Federal government.

    When in fact, it's neither. It's a matter for a woman and her doctor.

  3. Ah, context PC. The US was a FEDERATION of independent states at the time that was drafted.

    The 10th was intended to limit the powers of the Federal Govt to what the Constitution specifically allowed them and what the States specifically allowed them. All else was denied the Federal Government. Those denied powers were to reside in the States or with the people.

    Interesting question for you: do you believe that the use of that last phrase, "with the people", was intended to convey a collectivist ideology?.

    To determine which powers each of the States reserved requires a reading of individual State Constitutions, so the 10th isn't the final word. It restricts the Federal Govt., nothing more. In that regard it was a good idea.

    BTW it is best to remember that the 10th was preceded by the 9th. Consider those two in conjunction and the intent is much clearer.

    Your rewrite of the 10th is a major, major improvement over the original. Pity it wasn't drafted like that in the first instance. Then again, it is doubtful it could have been.

    So here we are, years on, with the sad news that, despite the intentions of some of the framers of the Constitution, the Federal Government ended up reserving all powers and rights to itself anyway.

    Oh well.


  4. It's not over yet:

  5. I'm interested in reading correspondence between those who wrote the U.S. constitution, does anyone know of any books that have letters and what not in them?

  6. "I'm interested in reading correspondence between those who wrote the U.S. constitution, does anyone know of any books that have letters and what not in them?"


    The best possible source (there are others that are good), is a pair of volumes called:

    Debate on the Constitution from the Library of America.

  7. That looks great man, thank you!

  8. Daniel,

    You're welcome. The Library of American volumes containing the writings of James Madison and that of Thomas Jefferson are equally good.

    LOA has other terrific collections, such as the complete works of Raymond Chandler, and many more. They have a website with a complete catalog.

  9. "LOA has other terrific collections, such as the complete works of Raymond Chandler..."

    ... which I can thoroughly recommend!

  10. Jeff

    I went to Washington to attend a conference years ago. While there I managed to spend time at the Library of Congress. Copies of some of the material you seek is there. You can have it copied (for a fee).

    The other trick was to join a US University library and have them do an inter-library search on their nationwide database. Then you can borrow what you need by way of an inter-library load. Make sure you get hold of a good scanner or a photocopier!

    Last and laziest trick is to locate a tame academic historian who you can ask to locate the whereabouts of that which you seek. It is amazing what they have access to and what they can ferret out. Their sources are really good. They know where really hard to find stuff may be found, if you get what I mean.


  11. I am a republican and constitutionalist however I would hate to see New Zealand adopt a written constitution at this time. We would end up with a loony, discriminatory, collectivist document that would guarantee all sorts of "freedoms from" that would be a million miles from the best intentions of Jefferson, Franklin, et al.


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