Tuesday, July 17, 2012

Obamacare and the Revenge of the "Secret Constitution"

“[T]he majority has at all times a right to govern the minority, and to bind the latter to obedience to the will of the former…. In a general sense the will of the majority of the people is absolute and sovereign, limited only by its means and power to make its will effectual.”

Joseph Story, Commentaries on the Constitution, III, 327, 330

"The scientific concept of dictatorship means nothing else but this — Power without limit, resting directly upon force, restrained by no laws, absolutely unrestrained by rules."

Vladimir Lenin

A constitution merely prolongs the pretense that a political government can be limited by laws that it will interpret. Eventually, every constitutional government will embrace Lenin's ruling formula -- "Power without limit, resting directly on force.” 

The function of the judiciary is liturgical: It transmutes the restrictive language of the constitution into a mandate for government action. This process is called “state-building” – and the purpose of the judiciary, insists Professor Jack M. Balkin of Yale Law School, is to “ratify significant revisions to the American social contract.”

According to Balkin, “the most important function of the federal courts is to legitimate state building by the political branches.” It does this by supplying the appropriate scholarly conjurations every time those in charge of the State seek to enrich their powers at the expense of individual liberty. 

In this fashion, the relatively modest constitutional state of the early 19th century – which, Balkin notes with palpable disapproval, “didn’t do very much more than national defense and customs collection” – built itself into the omnivorous monstrosity he calls the “National Surveillance State.” This is an entity that claims the authority to slaughter, torture, and imprison anybody on the planet for any reason. From Balkin’s perspective, the role of the courts is not to protect the rights of the individual, but to issue the occasional theodicy justifying the inscrutable ways of the divine State. 

“Whenever the federal government expands its capabilities, it changes the nature of the social compact,” writes Balkin in The Atlantic. “Sometimes the changes are small, but sometimes, as in the New Deal or the civil rights era, the changes are big. And when the changes are big, courts are called on to legitimate the changes and ensure that they are consistent with our ancient Constitution” – a procedure that frequently involves subjecting language to treatment that even Dick Cheney would describe as torture. 

In order for this to work, candor must be scrupulously avoided, and the pretense of constitutionalism must be preserved.

“Courts do not simply rubber stamp what the political branches do,” Balkin asserts. “Rather, they set new ground rules. The government may do this as long as it doesn’t do that. Legitimation is Janus-faced: it establishes what government can do by establishing what the government cannot do” – at least, for now, until those running it decide that the time has come to do what was previously impermissible. 

That’s what happened in the Obamacare ruling, Balkin concludes: “The political branches sought to build out the American state and change the terms of the American social contract. The Court legitimated this result, but set new ground rules for politics going forward.” 

As he points out, both branches of the Establishment party want to continue building the Leviathan state, albeit in the service of different constituencies: “Most Republican politicians don’t actually want to strip the federal government of most of the powers to regulate, tax and spend that came with the New Deal. This is because Republican politicians want to use those powers to promote Republican policies….” 

Thus it was exquisitely appropriate that the Supreme Court’s ratification of “the most important piece of social welfare legislation since the 1960s” came in a majority opinion written by a Bush-appointed Republican conservative. After all, we should expect adherents of the Party of Lincoln to be doing the works of Abraham. 

In his book Our Secret Constitution: How Lincoln Redefined American Democracy, George P. Fletcher, a Marxist Columbia University School of Law professor, describes how the mission of Abraham the Destroyer was not to preserve the constitutional union, but rather to impose a new order – one created through aggression by the central government against the states that created it, and the people from whom it supposedly derived its powers.

“The new order inherits an operating Congress, Executive, and Judiciary,” writes Fletcher, and although federal institutions have been “recast in new functions, the forms remained the same.” Behind a change in federal functions is a new ruling ideology, in which the central government elite now acts on “the consciousness of setting forth a new framework of government, a structure based on values fundamentally different from those that went before.”

“The heart of the new consensus is that the federal government, victorious in warfare, must continue its aggressive intervention in the lives of its citizens,” writes Fletcher approvingly. The Founders' Constitution was sold to the populace as an austere and proscriptive document that defined the few and specific things the central government would be permitted to do.

This arrangement was changed through Lincoln's war of aggression, according to Fletcher, since “the liberty that comes to the fore in the intended postbellum constitutional order and under the Secret Constitution requires the intervention of government. Liberty is born in the state's assertion of responsibility to oversee and prevent relationships of oppression.” (Emphasis added.) 

That is to say that “liberty” is a revocable and highly conditional gift of the State, and that “oppression” exists anywhere there are limits placed on the exercise of federal power. One is “free” only to the extent he supports, and is subject to, the benevolent rule of the unfathomably noble beings who inhabit the Imperial Capital. Questioning their edicts and actions on “constitutional” grounds is intolerably impudent – nay, it is nothing less than blasphemy, since everything our masters do is blessed with the “presumption of constitutionality.” 

In his recent book It Is Dangerous to be Right when the Government is Wrong, Judge Andrew Napolitano (one of the few jurists worthy of that honorific) underscores the importance of the Supreme Court’s United States v. Carolene Products ruling in 1938.

The case dealt with a federal statute banning the sale of a product called “filled milk.” The measure, which was passed as a favor to the dairy lobby, was devoid of constitutional authority – but the Supreme Court upheld it in the interest of “state-building,” and in doing so it promulgated a new doctrine of “presumed constitutionality.”

“The Court’s reasoning was that the statute should be presumed constitutional, and thus the burden was on the defendant company to prove that Congress could have no constitutional authority and no lawful basis for regulating the sale of the product – a nearly impossible showing,” recalls Judge Napolitano. “By requiring a presumption of constitutionality instead of a presumption of liberty, the Court permitted Congress to transgress economic liberties for almost any reason it wished.”

That presumption invests the federal government with something akin to constitutional infallibility: Between 1937 and 1995, as Judge Napolitano observes, the Supreme Court didn’t strike down a single piece of federal legislation on constitutional grounds. 

Many people blessed with sound, sober, and subtle minds believe that all of this represents a “perversion” of the original constitution. Others, such as the ever-perspicacious Butler Shaffer, insist that the federal government has "never deviated" from the Constitution: The document was written in a way that encouraged government expansion and provided the means to accomplish it while sustaining the necessary illusion that its powers were effectively limited by law and its administrators were in some sense accountable to the people they rule.

Any governmental charter permitting seizure of property through "eminent domain" and the suspension of habeas corpus (the irreducible due process guarantee) for any reason is latently totalitarian at best; those provisions offer a glimpse of the “secret constitution” described by Fletcher, in which federal power is limited only by the ingenuity and brazenness of those who wield it. 

Many conservatives reacted to Judge Roberts’ Obamacare ruling by giving voice to the same pious outrage they express every time the Supreme Court redefines the “social contract.” A healthier reaction would be to ask: Why should any individual be governed by a “contract” that he never signed, and that the other party can unilaterally revise at its pleasure?

Dum spiro, pugno!


KPRyan said...

Another excellent article.

It was only in early middle age (that sounds better, I think) a few years ago that I finally realized it was necessary to look at EVERYTHING my parents, my teachers, my books, the tele and news and Holywood taught, explained, and downloaded into my mind with a jaundiced eye (and heavy heart).

I've been exploring the idea recently that those who created and ratified the Constitution did so with a totally different understanding of the 'social contract' than the one offered up for popular consumption.

And now to read Butler Shaffer's (and William Grigg's) contention that 'our leaders' have never deviated from the Constitution (despite the tale weaved by the Republican establishment), I find this argument reinforces that particularly bitter pill for me to swallow. But yes, it makes sense: "Any ... charter permitting seizure of property through ''eminent domain'' and the suspension of habeas corpus for any reason is latently totalitarian at best..."

ray said...

"presumed constitutionality" lol

straight from the Liar's lips to the ears of US

walk into safeway, help yourself to the goods, walk out, claim "Presumed Freeness" :O)

to write top notch, sane political pieces, one cant be afraid

i'm right across the street, yup, it's a good place to be

Anonymous said...

Spooner and Royce(Boston T. Party - Hologram of Liberty in particular) were/are correct. Great to see so many waking up and becoming students and advocates of the philosophically mature Non-Aggression Principle.

Nullifier said...

“the liberty that comes to the fore ... requires the intervention of government."

That's as asinine as drinking alcohol for the purpose of achieving sobriety. Fletcher must be one stupid m*******r.

MoT said...

The last sentence says everything.

liberranter said...

You've outdone yourself yet again, William. While I intend to circulate this far and wide to friends and loved ones who pay mere lip service to the idea of liberty without grasping its substance, I know in advance that it will be a wasted effort. Far too many of those I love, as well as millions of others in this country, are simply too thoroughly brainwashed to face the truth. To restate the sentiments expressed in KPRyan's comment, to acknowledge that everything they have ever been taught about "their" government is a complete and total lie is just too horrific for them to contemplate. Better to remain in a state of willful ignorance for as long as possible.

willb said...

Great article.

Our fed-gov is in essence a mystery religion.

At its heart is this "secret constitution" reserved
and understood by the initiated but shrouded from
the profane with symbolism and half truth.

If the veil fades, in comes the Supreme Court to resolve
the schism and we all go back to our hymnals confident
that the world is rational.

Ultimately, at the heart of the mystery lies the "secret"
and the secret is: there is no secret. It's all bullshit.

Anonymous said...

This article dovetails perfectly with an interesting book I am reading currently by Professor Thomas DiLorenzo called "Lincoln Unmasked". If you want to learn more about the man who murdered The U.S. Constitution it's well worth reading.

Of course, given that the Federalists won the constitutional debate in 1787 it was probably inevitable that the Hamiltonian concept of the plenary powers of the federal government would prevail. When Obushma beats Obamney this November he will embark on a bold and flagrant expansion of the Chief Executives plenary powers via executive orders, signing statements, spurious claims of executive privilege and other tyrannical devices.

All of these measures are much beloved by the bipartisan Hamiltonian miscreants who have been ruining The Republic since it's inception. Lincoln did much damage to our nation and should be widely reviled but the Federalist principles carried the seeds of liberties destruction from the very beginning.

Anonymous said...

"The function of the judiciary is liturgical."

I am so ANGRY THAT I DIDN'T THINK OF THIS FIRST. Will, this encapsulates it all. Brilliant, utterly brilliant.

Anonymous said...

Great blog

Unknown said...

Excellent article Will. you are our modern day Lysander Spooner!

Bob said...

What else can I say, Will?

Damn you, Alexander Hamilton!


DL. said...

One of the very few bloggers who get it, that the Constitution, written by elitists for elitists--not the American people (or, should I say, by slave owners for slave owners, or else slavery wouldn't have stood quasi-legal in the form of "3/5 of a person" BS, was NEVER completely meant to uphold liberty for the people and was written in a deliberately vague manner as well as setting up what would later become the 14th Amendment, which created corporate citizens (that is, UNITED STATES CITIZENS, all of whom reside in the District of Columbia) under the guise of creating a class of citizenship for newly freed slaves. Now it is nearly impossible to re-establish the "sovereign citizen" who, for one, owes nothing to the IRS (but since it is mandatory for citizens of the District of Columbia to pay taxes per the Constitution (16th amendment, whether or not it was properly ratified), the elites and banksters HAD TO impose universal "District of Columbia" CORPORATE UNITED STATES CITIZENSHIP ON US ALL.

Will, you and Shaffer and a few others understand this, of course.

Thanks for bringing up this "constitutional" issue!

Mr. Mcgranor said...

Liberty must be a benevolent dictator, against the social democracy of the vast majority.

Bob said...

I wonder, Will, what now, in the wake of the Batman Theater Shooting.

Anonymous said...

Yet another passionate American who has no clue about the 3/5 provision.