In Part One of this series, I have discussed in broad terms the flaws of the present Constitution, link HERE.
Part Two discussed the specific shortcomings of the US Constitution, and there were a number of thoughtful comments that added significant value. Link HERE. Part Three covered suggested steps to be taken and touched on the importance of ENFORCEMENT of the Constitution as the highest law of the land. Link HERE. This installment is about making the myth of the Constitution real, about how we can go about actually enforcing the Constitution. The idea of Constitutional enforcement has been an undercurrent in American politics for a long time, almost as long as the Constitution has been in force. Lysander Spooner in his essays entitled "No Treason" was not the first person to point out this issue, nor was he the last. Yet after over 200 years of increasingly obvious issues with the Constitution, we still have no enforcement clause. Moreover, very few people are discussing what I consider to be the single most egregious flaw in the Constitution. Neither Michael Farris in his push towards an Article 5 Constitutional Convention nor Mark Levin in his book "The Liberty Amendments" promote Constitutional ENFORCEMENT, preferring rather to propose adding still more unenforceable amendments to an unenforced, and unenforceable Document. The only person I know that pushes the idea of enforcement of the Bill of Rights and the Constitution as the highest law of the land is Neil Smith. Despite endless lip service about Constitutional Government, few people out of government, and nobody at ALL in government seems to actually want to enforce The Document. Why is that? Cui Bono? Well, not having an enforcement clause sure makes looting the taxpayer a lot easier, and it also makes it a lot easier to "enact a multitude of laws and eat out our substance." A country like ours, where over half of the people working actually work for one governmental agency or another, either directly or indirectly, does provide considerable incentive for those folks to vote in favor of keeping their jobs funded. Enacting an enforcement clause is going to be damned difficult to do; enforcement of the Constitution will break lots of rice bowls. Both the Demopublicans and Republocrats see significant benefit in maintaining the illusion of legitimacy provided by the present myth. Oddly enough, however, given the things the ruling oligarchy in this country have recently done, like having our military parade in red high heels and importing large numbers of 7th century barbarians in the hope that Western civilization will benefit therefrom, I'm hopeful that the right combination of stimuli can make the average American politician vote for damned near anything, as long as the carrot of re-election is dangled temptingly enough in front of them. But in any case, before we get hung up on the "how," let's think first about what an enforcement clause ought to look like. So what should an Enforcement Clause do? I have been thinking about this over the last two years, and here are my thoughts: One of the problems we have with the current legal system is that it is a form of guild socialism. That is, if you do not belong to the appropriate guild, and pay the guild tax, you do not get to work in that profession. Guild socialism was common in medieval times, and was an early version of merchantilism, acting to restrain market entry and limit competition. American exceptionalism was due in part to getting away from those medieval ideas, and allowing anyone who wanted to enter the market to do so. Unfortunately, the lawyers managed to maintain their guild after the Revolution, and it still rides us today. As an aside, the last time I checked, I believe that there are only a few states that still allow people to read the law and take the Bar exam without having graduated from an accredited law school, one of which is the Commonwealth of Virginia. (see links here and here.) With regard to the broader issue of Constitutional enforcement, the problem is that it is totally impractical, (in reality not possible,) for a non-attorney at present to act to strike down an unConstitutional law, and the only way to gain 'standing' is to break the law and place yourself at risk of conviction. Given that the overall conviction rate for Federal indictments runs in the high 90% range, why would any sane person do such a thing when the deck is so obviously stacked against the common citizen? The 1934 NFA (*1) which led to the case of US v. Miller, where the Federal Government won on appeal because the plaintiff failed to show up at the Supreme Court, is just one example of such issues; there are probably tens of thousands. If we are to have true enforcement of the Constitution, we have to be sure that access to whatever mechanism is developed is not restricted to the privileged class of lawyers, and that people who perceive an infringement on the Constitutional limits on Federal authority do not have to place themselves at jeopardy to seek correction. Any American must have the right to challenge the acts of every level of government which purports to have jurisdiction over them. The second issue I see is that Constitutional issues get bumped up the ladder, taking years of time and gobs of money before the Supreme Court rules on the matter at hand......or doesn't, in which case confusion reigns for another stretch of time, and the poor suffering taxpayer who got screwed by the government in the first place gets ignored. There needs to be a process that provides PROMPT relief. "Justice delayed is Justice denied," right? If the determination is made at the local level that there has been Constitutional infringment, or if there is any significant delay, there needs to be immediate action to provide relief from the unConstitutional law or regulation, which according to precedent is now void, but which in practise never goes away. That stay or injunction ought to restrict the government, at whatever level the action is brought, from acting until the issue is finally resolved at whatever level it ends up being resolved. Moreover, if the case is appealed, and the higher court finds in favor of the plaintiff, the stay should be required to be extended to the entire jurisdiction of the court holding in favor of the plaintiff. This puts some teeth into enforcement, and ought to help correct the present tendency of Federal attorneys to do the legal equivalent of the "Rope-a-dope" and to draw out the proceedings and attempt to bankrupt the plaintiff by appealing any time they get an adverse ruling. The third issue is that nobody is held responsible. There is no personal accountability on the part of any of the myriads of Federal, State, or local governmental elected or appointed officials, agents, or employees for their misfeasance or malfeasance. Those who violate the Constitution do so with impunity. That DEFINITELY needs to change, and those convicted of unConstitutional activity under color of law should suffer for it, both civilly and criminally. On the civil side, the costs of the legal action should be assessed against the person or persons involved in the infringment, personally, and they ought to be discharged from their position and stripped of their wealth, as well as salary, benefits and pension, and any other assets they possess. On the criminal side, deliberate infringement of the Constitution ought to be a felony, and any such infringement resulting in loss of life, directly or indirectly, ought to be punished severely. One could argue that such subversion of the Constitution and violation of rights under color of Law ought to be treated as treason, with the death penalty available, but in any case, any governmental employee, representative, or agent should be liable for their actions. So there is my conceptual list of what an Enforcement Clause for the Constitution ought to do. Constitutional Enforcement ought to:
With Regard to all who serve the Light, Historian (*1- NFA=National Firearms Act of 1934) Edited 5/17/16 to correct an erroneous reference to GCA; h/t to the Backwoods Engineer who pointed this out at the Zelman Partisans website. Thanks! It is rare that I find myself in complete agreement with anyone, and Mike Vanderboegh is no exception. That does not change the fact that he has been one of the pivotal figures in the late 20th century and early 21st century struggle for the restoration of Liberty to these presently united States. I have been eagerly awaiting the completion of his novel "Absolved" for several years now, and was looking forward to reading it. I knew Mike was busy with other things, and I was willing to wait for it. While I was waiting, Mike uncovered the "Fast and Furious' gun smuggling scandal and the attempted coverup, as well as standing for our rights and sticking a number of fingers in a variety of tyrannical eyes.
Now according to Mike, his cancer has gained ground, and his doctors are telling him that his time on Earth is short. Link HERE. He has paid a price for his uncompromising stands for Liberty, and has many enemies who are doubtless rejoicing at his pending demise. His death will leave an unfillable gap in the ranks of the FreeFor; I will miss his reportage and posts greatly. It is said that one only knows what one has lost after it is gone, but I already know that I shall miss reading "Sipsey Street Irregulars" a great deal. Rather than praise him after his death and applaud his many good deeds, I'm going to heed the advice of another great patriot, Robert Heinlein, and applaud by sending him currency now while it matters. I encourage each of you to do likewise; please dig deep. He deserves our respect, our gratitude, and our support. Mike Vanderboegh, PO Box 926, Pinson, AL 35126. Paypal email address- [email protected] With regard to all who serve the Light, Historian It has been an extremely busy year so far. Much has been going on, both here at Liberty Hollow, which is my homestead, and abroad. As there are only 168 hours in a week, and as my commitments exceed the time available, my writing here has suffered. Also, to a certain extent I have wondered whether anything I have to say makes any difference at all in the face of the insanity that I see daily. I have wondered whether it is worth my precious time to write about it, and whether my time is better spent elsewhere.
However, the recent followup attacks in France, and the ongoing Islamic invasion of Europe, have prompted me to set other demands on my time aside and once again violate my rule on commenting about current events. As I commented in January (link here) France will not solve its problem by appeasement, or by allowing further Islamic immigration, as has just been demonstrated. What happened in Paris on November 13th was completely predictable, inevitable really, given the nature of Islam and the present refusal of the European authorities to acknowledge the essential savagery of Islam. It remains to be seen whether French authorities will be prompted by the atrocious slaughter of over a hundred Frenchmen to remove their heads from the sand or whether they will burrow more deeply. A few observations from this most recent atrocity:
France, and Europe more generally, will do whatever it is they decide to do. If they are wise, they'll follow the suggestions I made this past January, but I cannot control what happens in Europe. However when one examines the events unfolding there, and considers the implications of these events with respect to these united States, a few conclusions can be reached:
I had hoped that I might someday visit Europe, to enjoy all the history there firsthand. I still hope so, but will have to see whether Progressivism drives Europe to its fall or whether the heirs of Charles Martel can once again rise to the need, and defend European civilization against 7th century barbarism. These are, indeed, interesting times. With regard to all who serve the Light, Historian The first question one must always ask, when faced with political matters, is "What is the proper function of government?" In other words, what is government supposed to do, and does this proposed political action conform to it? I suppose that regular readers of my blog, if any, might be bored to read yet another exhortation on this subject, but I think it bears repeating. So, I do! But enough of that, let's get to some newer ( or perhaps older!) material.
But the SECOND question that one ought to ask is- Cui Bono? ('qui bono' "To whose benefit?") Cui Bono is a Latin term, probably made most famous by the Roman judge, Lucius Cassius, in ancient times, and still used with effect today. The answers to this question can be most enlightening, in all sorts of situations. Sometimes, trying to figure out the intricacies of a complicated bit of legislation, sorting out all the whys and wherefores, can be exhausting. In such a situation, it is often more productive to consider who will benefit, and who will be hurt. This is true outside politics, as well. When I contemplate the current state of affairs among those who supposedly stand for Liberty and listen to all the various arguments among all the various factions, if I were not a student of history, I'd be tempted to indulge in fits of gibbering rage at the parochial pettiness of some of the arguments ongoing. Yet, putting matters into perspective, history shows that this is not unusual. The Greek city-states, after revolting from Persian rule, spent the next few years squabbling and quarreling amongst one another. It was not until the advancing Persian army came closer and closer to Greece that the bitter factionalism died down, and the various Greek city-states joined together. After the heroic defense of Thermopylae, where a few thousand Greeks, led by Leonidas and the Three Hundred, slowed the Persian advance, the Greeks rallied to defeat Persia, first at Salamis and then at Plateia. The thirteen American Colonies similarly were stricken by factionalism and parochialism; it took over a year after the Revolutionary War started on April 19th, 1775 for the Continental Congress to declare independence, over 3 months after the British fleet evacuated Boston. Nor are these the only two such examples; from Ancient Rome to medieval times right up to today, history is replete with people busy picking a fight rather than picking the fruits of peace, even if the only quarrel they can find is with their comrades right beside them. Ah, well. Not only that, but history also shows us that there are often those who have taken a tyrant's silver to deliberately sow discord, to encourage division, to promote indecision, to poison the morale of the resolute and intimidate the undecided. It is worthwhile, then, to ask, in the immortal words of Lucius Cassius, cui bono? Who benefits from the present state of factionalism and bickering? On whose behalf are the sowers of discord acting? On whose behalf are you acting? Would you rather be right, or free? *I* do not pretend to know the answer to this question, O gentle reader. But I do know that it is worth your time to ask, and to answer, that last question. Contemplate your answers, consider the Perfection of Imperfection, and then ask yourself one more question- "What is my goal, what do I seek?" Most men seek to defend their families. Patriots know that defense of the rights of Man is essential to the long-term well being of their family and their friends, and thus they defend what is right. What do you defend? Do you truly seek individual freedom, where every person may do as they choose, live as they please, as long as they do not interfere with the right of others to do the same? I am struck by the irony of those who say that they seek to oppose tyranny, to defend freedom, yet in the next breath they aspire to stamp their preconceptions upon every brow. Is that Liberty? Look at your actions, and weigh the answer. Then do some PT and polish those skills! With regard to all who serve the Light, Historian Normally, I don't comment much on current events, but as with the reopening of the Mall in Mordor-on-the-Potomac, I am impelled to comment on the recent murders in Paris and the aftermath.
We have a rule at my home; no living creature not specifically authorized for entrance is allowed in our house. Mice, snakes, spiders and insects are all forbidden entry and if caught or discovered, are killed. Within the immediate area of the house, within 100 yards, any poisonous or dangerous creature, (rattlers, copperheads, black widow spiders, etc.) are also immediately dispatched upon discovery. Beyond our immediate curtilage, we adopt a live and let live policy. If our plentiful population of timber rattlers and copperheads don't attack us, we leave them alone to help the blacksnakes and other less dangerous predators keep the mice and other vermin down to a manageable level. (I have been told anecdotally that the 'Warning! Rattlesnake breeding area!" signs do inhibit the local methheads from trespassing...) After one episode early in our tenure here at Liberty Hollow, when I discovered how quickly rattlesnakes can move when stung by a near miss, we keep snake shot "upfront" in our personal defense arms during warm weather, we wear appropriate clothing and boots, and we keep a wary eye out at all times. While we are willing to tolerate their presence on our property, we also know that it is useless to try to reason with a copperhead bent on aggression; the snake is simply responding according to its nature. As a Libertarian, I am generally inclined to tolerate a very wide variety of behaviour from other humans, as long as they allow me to live my life as I choose, don't try to force me to adopt their viewpoint or beliefs and respect the foundations of advanced civilization- the rights to life, liberty and property. But toleration is not acceptance. Far too many people on all sides of this issue conflate those two. In particular, the fact that I am willing to tolerate religious freedom does not mean that I accept someone else's religion, nor that am I willing to tolerate rape, murder, or misogyny. Believe as you wish, celebrate whatever faith you desire, but the moment that anybody initiates force against an innocent for whatever reason, they are become uncivilized barbaric savages who have forfeited by their own action any rights they might otherwise have possessed. At its root, this is a binary solution set; either one believes in individual rights for everyone and respects them, or one does not. Any sapient being who is not willing to allow others their otherness and respect their rights has forfeited any claim on his own. When I attended the University of Virginia, many years ago, there was a simple honor code. One did not lie, cheat, or steal, or TOLERATE ANYBODY WHO DID. The sanction was simple; if you were found guilty of a violation of the standards of conduct, you were expelled from the University. As a result, one could leave their possessions in the library, go eat lunch with friends, and come back hours later to find your expensive textbooks left unmolested exactly where you had left them. More anon. John Robb, of "Global Guerillas" has posted an interesting article about the latest Islamist outrage, link here. Robb postulates that in declaring war on Islam, that France has fallen into a Red Queen trap. This is only true within a certain context, however; one in which the bulk of the people are disarmed, in which people are not allowed to shun or dis-associate others, and in which France will continue to tacitly allow the Islamization of France. There is a better way. I submit that the proper strategy for France in dealing with their Islamist problem is four-fold-
I think that adoption of this strategy would be effective, and would avoid the blowback and escalation inherent in another 'war of terror.' While anyone who respects individual rights may be obliged to tolerate a loathsome belief system, there is not a whit of reason that one must tolerate loathsome behaviour, and we ought not do so. I am not Charlie, for I do not intend to die unarmed at the hands of barbaric savages, nor should any other person. With regard to all who serve the Light, Historian a |
HistorianA grouchy middle aged engineer and amateur historian, blessed with a love of freedom and a plethora of opinions. Permission to excerpt or repost is granted, provided that the excerpt or repost includes a link to the original post, with attribution.
Email to Historian at MG58MG (at symbol) Yahoo (dot) com Liberty Hollow's suggested reading list:
Philosophy- "Philosophy, who needs it?" "Anthem" "Looking out for #1" Politics- "The True Believer" "Common Sense" "the Rights of Man" "The Ominous Parallels" Finance and Economics- "Economics in one lesson" "Whatever happened to Penny Candy?" "the Wealth of Nations" "The Clipper Ship Strategy" Liberty oriented Fiction- "Time Enough for Love" "Freehold" "Starship Troopers" "Atlas Shrugged" "Anthem" "A Planet for Texans" "The Ecologic Envoy" "Adiamante" The Constitution- "the Framing of the Constitution of the United States" "Hologram of Liberty" Banking- "The Creature from Jekyll Island" Archives
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