Tuesday, August 13, 2013

Contradictions in the Constitution

“He sat at a table, and the light of his lamp fell on the copy of an ancient document. He had marked and crossed out the contradictions in its statements that had once been the cause of its destruction.”  Atlas Shrugged.

  1. The basic contradiction was not clarifying those things which the government is allowed to do from those things which only the government is allowed to do.
  2. The Bill of Rights was not originally incorporated to the states.
  3. No "Nullifcation Clause" prevented amendments that alter the fundamental intent of the original document.
  4. The Seventh Amendment is questionable.

Should the government maintain post roads or post offices? They may well need their own couriers and dispatches, of course. (See “Unlimited Constitutional Government” linked below.)  However, it is a basic contradiction in the Constitution that granting some power to Congress suddenly creates a government monopoly in what should be an open market. Let there be government offices for sending correspondences to and from the government, if that is needed, but why does everyone else lose the right to carry mail?
Signing the Constitution (Library of Congress)
Consider the daily journals of Congress. Article I, Section 5: “Each House shall keep a Journal of its Proceedings, and from time to time publish the same…” However, private stenographers and reporters attended the sessions and published their own accounts.  As the meetings of the U.S. Senate were not open to the public until 1795, at first these were only for the House of Representatives. (See The Early Congressional Debates and Reporters by Samuel Oppenheim, New York, 1889.)   In the 1980s, Hanna Information Systems, StateNet and other private legislative reports pioneered computerized access, ahead of the Library of Congress's own THOMAS System. Despite the attitudes of the first U.S. Senate, it would be contrary to our intent of an open government to prohibit that. But it is not explicit as something that Congress is empowered to do, but which others also can do. 

Like building post roads and publishing a journal, coining money is another business that the government might need under its wing for convenience but which should not be prohibited to others.  Bernard von Nothaus was prosecuted for his “Liberty Dollars” and called a “financial terrorist” just for making coins.  Legislation over the past 200 years outlawing tokens proved unsuccessful, as a trip to a video arcade will show. Community currency such as Ithaca Time Dollars and Bay Bucks continue unharassed.  The persecution of Nothaus was entirely political: the Obama Administration seized $60 million in bullion by claiming a legal monopoly on coinage via the Constitution.

Changing the date of the Inauguration (20th Amendment) was only a nod to modern transportation and communication.  Lowering the voting age, correcting the evils of slavery, and extending the vote to women were easy to accept as the extension of political rights in a democracy.  The 11th and 12th Amendments remain obscure to most people who claim to know the Constitution.  However, the 12th in particular, like the 17th (direct election of senators) was no mere technical adjustment but a structural change in the mechanism of power.  The political party system was accepted and the 12th assured that the President and Vice President would come from the same party.  How wise that was may be debatable. 

Easily, the worst examples were the Income Tax (16th) and Prohibitiion (18th).  The Volstead Act (18th Amendment) was repealed by the 21st.  That raises the question of another basic contradiction: the lack of a Nullification Clause.  It is easy to argue that in case of a bad law, the forces of justice will eventually triumph and it will be repealed.  However, the 18th brought on open warfare among rival gangs and between them all and the government.  It was an expensive mistake.  No Amendment can repay the victims.  And we still have the Income Tax.  A Nullification Clause would prohibit any amendment that violates the intention of the document considering its full text and meaning. 

Another contradiction in the original document was its lack of enforcement at the state level. Just as the original Constitution described the mechanisms of the federal government, so, too, did the Bill of Rights only protect citizens from the federal government.  Massachusetts collected taxes for the Congregational Church until 1833.  Only in 1990 did a state appeals court in South Carolina finally strike down laws requiring affirmation of religious beliefs to be a standard.  After the War Between the States, when the former Confederate states were re-admitted to the Union, they modeled their new constitutions after those of Massachusetts and Pennsylvania.  In order to serve on a jury, vote, or run for office, you had to swear (or affirm) a belief in a Supreme Being.  Not only did the First Amendment did not apply to the states, you could be searched, seized, tried without a jury, and even be tortured for a confession (Brown versus Mississippi, 297 U.S. 278; 1936).  The Bill of Rights did not apply to the states.  Still today, the 2nd Amendment has not been incorporated fully to the states.

Should the government set weights and measures? As weights and measures are fundamental to contract law, it would seem so. But nothing prevents you from having your own set, or from the general market ignoring the government, as we still use the English system in a nation legally on the Metric system. In fact, until the 1830s and later, many merchants along the East Coast kept their books in pounds-shilling-pence, despite the definition of a dollar. Banknotes of the period often showed Spanish or Mexican coins while promising to pay a quarter or half dollar. Industrial goods of many kinds come in many dimensions not defined by law; and yet, nothing falls down or collapses, no work grinds to a halt for the lack of a compatible fastener. So, why does the government need to define weights and measures?

In her essay, “Government Financing in a Free Society” Ayn Rand asserted that the government is the servant of the people, but not the unpaid servant.  According to the 7th Amendment in the Bill of Rights, you are guaranteed a jury trial for suits over $20 in value.  For nearly 1000 years, from the Great Fairs of the Middle Ages, private courts have handled contract disputes.  Read any credit card contract, any mortgage, any car loan, or the terms of an “I Accept” click.  You easily agreed to private arbitration ahead of any trial in a government court.  You might have agreed to binding arbitration, giving up your right to a court trial for a dispute involving more than $20.  Perhaps the Seventh Amendment is a contradiction that needs to be fixed.

We do not know what Ayn Rand would have removed from the Constitution.  However, her Judge inserted this into his draft: Congress shall make no law abridging the freedom of production and trade.


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