“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.
- 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.
- The Bill of Rights was not originally incorporated to the states.
- No "Nullifcation Clause" prevented amendments that alter the fundamental intent of the original document.
- 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.
PREVIOUSLY ON NECESSARY FACTS
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