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Democracy Proves To Be The Death Of The Constitution.

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Sadly for the American experiment in liberty, democracy has corrupted the original ideas to the point of destroying them. Our most recent Presidential election has ended in a tie (thus undermining the basic – although hateful – democratic concept of majority rule) because both sides are equally anti-freedom.

Is the U.S. Constitution the biggest roadkill on the 2020 campaign trail? Is faith in “American exceptionalism” blinding people to a death spiral of American democracy?

According to much of the media, this is a single-issue election: “It’s the pandemic, stupid,” as a Politico headline blared. Unfortunately, the media was not smart or honest enough to recognize the real issue this year: “It’s the Constitution, stupid.”

Surging Covid caseloads earlier this year led to a domino-like collapse on restraints on politicians across the land. In April, President Donald Trump proclaimed, “The federal government has absolute power. It has the power. As to whether or not I’ll use that power, we’ll see.” The Justice Department asked Congress for authorization to suspend habeas corpus for the duration of the pandemic but was rebuffed. In September, the Centers for Disease Control somehow acquired the power to suspend tens of millions of rental contracts and prohibit any evictions of tenants who ceased paying rent until after the end of December.

But these decrees could be child’s play compared to what could follow after the election.

The Constitution was intended to place politicians under “house arrest” – to strictly limit their power over private citizens in perpetuity. But in 2020, “house arrest” has been the default decree of many governors, and Democratic presidential candidate Joe Biden said he may impose a national lockdown if more people test positive for Covid. Biden says he changed his mind and won’t shut down the economy. But his rhetorical reversal could be as nonbinding as were campaign promises to keep the nation out of war by Woodrow Wilson in 1916, Franklin Roosevelt in 1940, and Lyndon Johnson in 1964.

Biden has run one of the most brazen fear-based presidential campaigns in modern memory. He routinely exaggerates Covid death tolls by a hundred- or a thousand-fold and talks as if every American family has lost a member or two from this plague. The more fears that politicians fan, the easier it becomes to seize boundless power.

Covid shutdown advocates flaunt claims of “science and data” like righteous priests invoking God and the Bible to sanctify scourging enemies. In the same way that local health czars felt entitled to shut down all private and public schools if the Covid positivity rate exceeded 0.000008% of the population, so the next president may feel entitled to nullify the Constitution if more than a statistically insignificant number of people nationwide test positive. And it won’t matter that the tests are wildly inaccurate or that WHO overestimated the Covid fatality rate by 50-fold. Bogus Covid test results will be sufficient to euthanize bonafide constitutional rights.

Attorney General William Barr said that imposing a “national lockdown” would be “the greatest intrusion on civil liberties in American history” except for slavery. But the dictatorial issues raised by lockdowns received as much attention from the media as the batting averages for the Amarillo Sod Poodles minor league baseball team.

Trump, to his credit, is now an outspoken opponent of lockdowns. But many Trump opponents are not opposed to dictators per se; they simply want different dictates. The passion for near-absolute power spurs the hostility increasingly shown towards the Constitution by many liberals, leftists, and violent protestors.

If a national lockdown is imposed, it won’t matter that it fails to keep people safe. So many individuals and agencies will benefit from the boundless power that they will always find a pretext to perpetuate restrictions. Health czars will respond to failure with the same type of ever greater force that characterized floundering socialist economies (brilliantly captured in John Jewkes’ 1948 masterpiece, Ordeal by Planning).

This year’s political developments have illustrated how easily politicians can nullify Americans’ rights merely by promising to play King Canute and magically sweep away a virus. Federal judge William Stickman IV ruled in September, “Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional.” But the response to the dictatorial governors such as Michigan’s Gretchen

Whitmer and New York’s Andrew Cuomo reveals that tens of millions of Americans will happily sacrifice anything and everything for promises of a risk-free life.

Can Americans read their future in the fetters proliferating in other English-speaking nations? Last week, British Prime Minister Boris Johnson announced another national lockdown – 30 days of unmitigated misery, shutting down all “nonessential businesses” and confining people to their homes unless they have a few specific reasons to step out into the cold, cruel world. A senior cabinet member said yesterday that Britain’s shutdown may be extended beyond one month because “we will always be driven by what the data shows.” In New Zealand, the government last week announced it was creating “quarantine centers” for anyone who tests positive and refuses to obey government orders. One Twitter wag scoffed, “New Zealand went from gun bans to concentration camps in less than a year.”

If Americans could be confident that either Trump or Biden would be leashed by the law, there would be less dread about who wins. But elections nowadays are becoming simply coronations via vote counts. The president will take an oath of office on Inauguration Day but then can do as he or she pleases. Instead of vox populi, vox dei – “The voice of the people is the voice of God’ – we have “Damned Rascal Democracy.”

No one is entitled to the amount of power that the winner of this presidential election will commandeer over the American people. As Thomas Jefferson warned in 1799, “In questions of power, let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitution.” Either the Constitution leashes the rulers, or the rulers leash the people. There is no middle way: there is no such thing as provisional legal inferiority to officialdom. If citizens trust rulers who blatantly violate the Constitution, they place themselves on the political chopping block.

Americans need to recognize the profound weaknesses revealed this year in democratic governments at every level. A strict adherence to the Bill of Rights is the surest way to reduce post-Election Day perils. If freedom is to survive, Americans must become far better informed of the dangers from government — regardless of who wins the Presidency.

James Bovard via aier.org.

The Next Stupid Move Of Our Political Class Will Be To Tell Us We Must Become More Like China.

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Since a few things became clear to me last year, I’ve consistently forecasted a significant worsening in U.S.-China relations and remained adamant that all the happy talk of trade deals and breakthroughs is just a lot of hot air.

What first appeared to be a unique quirk of Donald Trump has morphed into bipartisan consensus in Congress, and clear signs have emerged that the general public has likewise become alarmed at China’s growing global clout.

Due to this, as well as a litany of other factors outlined in prior posts, it’s highly unlikely the current trajectory will reverse course and result in a return to what had been business as usual. Instead, we’re probably headed toward a serious and historically meaningful escalation of tensions between the U.S. and China, with what we’ve seen thus far simply a prelude to the main drama. If I’m correct and the ship has already sailed, we should focus our attention on how we respond to what could quickly become a very dicey scenario filled with heightened emotions and nefarious agendas. There’s a good way to respond and a bad way.

In our individual lives, we face various daily challenges, but every now and again something really big hits us, a personal crisis of sorts, and how we respond to these major events determines much of our future. The same thing happens to nation-states, particularly in the current world where virtually all human governance is structured in a highly centralized and statist manner. When such an event hits nation-states the public tends to be easily manipulated into a state of terror and coerced into granting more centralized power to the state, an unfortunate state of affairs that accurately summarizes the reality of 21st century America. With each crisis, the empire has grown stronger, the public weaker, and two decades later we find ourselves in a neo-feudal oligarchy where one half of the public is at the other half’s throat for no good reason. This is what happens when you respond poorly.

Three major crisis events have rocked the U.S. this century, and much of the public has embraced, or at least accepted, the worst possible response in all cases.

  • The first was the attacks of 9/11, which officially ushered in the modern national security surveillance state and all but obliterated the 4th amendment.
  • The second was the financial crisis, where the response from Bush/Obama was to bail-out the criminals, destroy any semblance of the rule of law by jailing zero Wall Street executives, and to ensure the Federal Reserve (and mega-banking institutions in general) became stronger and more powerful than ever.
  • Finally, there was the shock election of Donald Trump. Rather than take his ascendance as a warning about centralized power, the faux “resistance” has been obsessed with removing him, celebrating intelligence agencies/military aggression, bemoaning free speech, and rehabilitating George W. Bush.

Three crises, three horribly destructive responses. This entire century has been an unmitigated march in the direction of stupidity.

I’ve become convinced the next major event that will be used to further centralize power and escalate domestic authoritarianism will center around U.S.-China tensions. We haven’t witnessed this “event” yet, but there’s a good chance it’ll occur within the next year or two. Currently, the front runner appears to be a major aggressive move by China into Hong Kong, but it could be anything really. Taiwan, the South China Sea, currency, economic or cyber warfare; the flash points are numerous and growing by the day. Something is going to snap and when it does we better be prepared to not act like mindless imbeciles for the fourth time this century.

When that day arrives, and it’s likely not too far off, certain factions will try to sell you on the monstrous idea that we must become more like China to defeat China. We’ll be told we need more centralization, more authoritarianism, and less freedom and civil liberties or China will win. Such talk is total nonsense and the wise way to respond is to reject the worst aspects of the Chinese system and head the other way.

If you’re horrified by China’s human rights abuses, then push for an end to murderous U.S. wars abroad based on lies. If the Chinese surveillance panopticon concerns you, we should move in the exact opposite direction with less corporate and state surveillance, not more. If China launches a state-sanctioned digital currency system designed to monitor, and if desired, restrict transactions, we should reject this approach and embrace open, decentralized and permissionless systems like Bitcoin. We should fight lack of freedom with more freedom.

Given our track record this century, I’m skeptical Americans will respond in a positive and productive way to increased tensions with China,although perhaps I’ll be pleasantly surprised. I hope we can finally face a challenge without cowering in fear and surrendering more freedom in order to feel safe and powerful. I hope we can recognize that empire is not an asset, but a liability. That empire strengthens the state and weakens the public. I hope we can be wise enough not to embrace further authoritarianism to defeat authoritarianism. For once this century, I hope we can respond in a thoughtful and intelligent manner.

The Antifederalists Predicted The Results Of The Constitution With Eerie Accuracy.

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Most school kids are left with the impression that the US Constitution was the inevitable follow-up to the Declaration of Independence and the war with King George. What they miss out on is the exciting debate that took place after the war and before the Constitution, a debate that concerned the dangers of creating a federal government at all.

Everyone knows about the Federalists who pushed the Constitution. But far less known are the Antifederalists who warned with good reason against the creation of a new centralized government, and just after so much blood had been spilled getting rid of one.

The first of the Antifederalist Papers appeared in 1789. The Antifederalists were opponents of ratifying the US Constitution as it would create what would become an overbearing central government.

What the Antifederalists predicted would be the results of the Constitution turned out to be true in most every respect.

As the losers in that debate, they are largely overlooked today. But that does not mean they were wrong or that we are not indebted to them.In many ways, the group has been misnamed. Federalism refers to the system of decentralized government. This group defended states’ rights—the very essence of federalism—against the Federalists, who would have been more accurately described as Nationalists. Nonetheless, what they predicted would be the results of the Constitution turned out to be true in most every respect.

The Antifederalists warned us that the cost Americans would bear in both liberty and resources for the government that would evolve under the Constitution would rise sharply. That is why their objections led to the Bill of Rights, to limit that tendency.

Antifederalists opposed the Constitution on the grounds that its checks on federal power would be undermined by expansive interpretations of promoting the “general welfare” (which would be claimed for every law) and the “all laws necessary and proper” clause (which would be used to override limits on delegated federal powers) creating a federal government with unwarranted and undelegated powers that were bound to be abused.

One could quibble with the mechanisms the Antifederalists predicted would lead to constitutional tyranny. For instance, they did not see that the Commerce Clause would come to be called “the everything clause” in law schools, justifying almost any conceivable federal intervention—because the necessary distortion of its meaning was so great even Antifederalists couldn’t imagine the government could get away with it.

It merits remembering the Antifederalists’ prescient arguments and the virtual absence of modern Americans who share their concerns.

And they could not have foreseen how the 14th Amendment and its interpretation would extend federal domination over the states after the Civil War. But despite that, it is very difficult to argue with their conclusions in light of the current reach of our government, which doesn’t just intrude upon, but often overwhelms Americans today.

Therefore, it merits remembering the Antifederalists’ prescient arguments and how unfortunate is the virtual absence of modern Americans who share their concerns.

One of the most insightful of the Antifederalists was Robert Yates, a New York judge who, as a delegate to the Constitutional Convention, withdrew because the convention was exceeding its instructions. Yates wrote as Brutus in the debates over the Constitution. Given his experience as a judge, his claim that the Supreme Court would become a source of almost unlimited federal overreaching was particularly insightful.

Brutus asserted that the Supreme Court envisioned under the Constitution would become a source of massive abuse because they were beyond the control “both of the people and the legislature,” and not subject to being “corrected by any power above them.” As a result, he objected to the fact that its provisions justifying the removal of judges didn’t extend to rulings that went beyond their constitutional authority, leading to judicial tyranny.

Brutus argued that when constitutional grounds for making rulings were absent, the Court would create grounds “by their own decisions.” He thought that the power it would command would be so irresistible that the judiciary would use it to make law, manipulating the meanings of arguably vague clauses to justify it.

Expanded judicial power would empower justices to shape the federal government however they desired.

The Supreme Court would interpret the Constitution according to its alleged “spirit” rather than being restricted to just the “letter” of its written words (as the doctrine of enumerated rights, spelled out in the 10th Amendment, would require).

Further, rulings derived from whatever the court decided its spirit was would effectively “have the force of law,” due to the absence of constitutional means to “control their adjudications” and “correct their errors.” This constitutional failing would compound over time in a “silent and imperceptible manner,” through precedents that build on one another.

Expanded judicial power would empower justices to shape the federal government however they desired because the Supreme Court’s constitutional interpretations would control the effective power vested in government and its different branches. That would hand the Supreme Court ever-increasing power, in direct contradiction to Alexander Hamilton’s argument in Federalist 78 that the Supreme Court would be “the least dangerous branch.”

Brutus predicted that the Supreme Court would adopt “very liberal” principles of interpreting the Constitution. He argued that there had never in history been a court with such power and with so few checks upon it, giving the Supreme Court “immense powers” that were not only unprecedented, but perilous for a nation founded on the principle of consent of the governed. Given the extent to which citizens’ power to effectively withhold their consent from federal actions has been eviscerated, it is hard to argue with Brutus’s conclusion.

Brutus accurately described both the cause (the absence of sufficient enforceable restraints on the size and scope of the federal government) and the consequences (expanding burdens and increasing invasions of liberty) of what would become the expansive federal powers we now see all around us.

We need to understand their arguments if there is to be any hope of restraining the government to the powers it was actually granted in the Constitution.

But today, Brutus would conclude that he had been far too optimistic. The federal government has grown exponentially larger than he could ever have imagined (in part because he was writing when only direct, e.g., excise taxes and the small federal government they could finance were possible before the 16th Amendment opened the way for a federal income tax in 1913), far exceeding its constitutionally enumerated powers, despite the Bill of Rights’ constraints against it. The result burdens citizens beyond his worst nightmare.

The judicial tyranny that was accurately and unambiguously predicted by Brutus and other Antifederalists shows that in essential ways, they were right and that modern Americans still have a lot to learn from them.

We need to understand their arguments and take them seriously now, if there is to be any hope of restraining the federal government to the limited powers it was actually granted in the Constitution, given its current tendency to accelerate its growth beyond Constitutional limits.

This article was published at fee.org, republished from the original at Mises Institute. Gary M. Galles is a professor of economics at Pepperdine University.

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