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03/21/2008 - 12:13am

Libertarianism and the U.S. Constitution


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I was engaged in a debate last night that I found intriguing. It lasted at least three hours, but it was difficult to tell as time tends to fly in these situations.

One of the topics was the U.S. Constitution. The gentleman I was speaking with had asked me what the Constitution was (not that he didn't know, but was working his way up to a point). I responded by saying that it was a contract by the states and the federal government, basically the mandate that created the federal government. He then asked me, who does this contract bind? My response was that it bound the parties involved, the states and the federal government.

From there, his point was that the Constitution was agreed to by the people that were alive at that point, and why should it bind the people that are alive today, as they never entered into that contract voluntarily. However, the government, much like a corporation, is an artificial entity that survives its members, so the contract of the Constitution continues to be binding on those entities, and members of those entities.

He argued that even though the Constitution binds those that entered into it, the effects of the contract are imposed on us, and we never voluntarily entered into it, which would make it un-libertarian.

We quickly went on to another subject, but I've been thinking about this since. When the states ratified the Constitution, they transferred some of their authority to the federal government. So I think the real question here isn't, how can we be bound by a contract we didn't agree to, but rather, where did the states get the powers that they gave to the federal government? While the concept of the states contracting with the federal government may be legitimate insofar as it binds only the state governments and the federal government, the states appear to have transferred some of their ill-gotten power to the federal government.

Obviously, the Constitution is not a perfectly libertarian document. So why would a Libertarian candidate running for office support the Constitution? Most likely as a means of incremental improvements toward increased freedom.

For quite some time, the vast majority in our society have made arguments based off of precedents and contracts. An argument in a court in front of a judge that is based on "this is what our agreement was" or "this is what a previous judge did in a similar situation" seems to carry far more weight than "this is the moral position to take." So many will use the Constitution to make the point that "this is what the agreement was" when making pro-freedom arguments, such as cutting unconstitutional spending or regulations. The Constitution is not a rule book for the perfect society, but it is a tool that can be used to promote freedom.

What happens when the Constitution stands in the way of a libertarian from promoting freedom? In the case of Roe v. Wade, someone arguing for freedom would have to be in favor of this Supreme Court decision because it increases freedom. But someone following the Constitution would recognize that the Supreme Court had no authority to even hear the case, and therefore the anti-abortion laws would be allowed to stand, and the opportunity to increase freedom would have been lost. If the libertarian binds himself to what is allowed by the Constitution, he has not furthered his cause. If he decides to ignore the Constitution in this instance in order to promote freedom, he risks losing the Constitution as a tool in order to promote freedom in the future, because he can no longer argue for a contract which he himself has side-stepped.

Does the constitutional libertarian make an incremental improvement in freedom by supporting the Supreme Court's decision at the expense of losing a potentially powerful freedom-promoting tool? Or does he follow the contract, even though it means missing an opportunity to promote freedom, with the hopes of using the Constitution as a freedom-promoting tool in future opportunities to increase freedom to a greater degree than what was given up at this point? These are difficult questions to answer.

What happens if we're lucky enough that in our lifetimes' the federal government is reduced to its constitutional size? After rejoicing at the progress made, libertarians of course continue spreading their pro-freedom ideologies, because the Constitution does not limit government enough. But we'll need to find another tool.



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Posted by: paul
04/29/2008 11:46am

I would have added to the first argument that the constitution only applies to the treatment of U.S. citizens and mostly only while in the U.S. We are all free to move to to other countries, even those without rendition agreements. We are still free even in the Libertarian sense of the word (assuming the constitution is followed). I might also have made the claim that what the other side of the argument is anarcho-capitalism, for which there are several very strong arguments against.

Posted by: Dee White
08/01/2008 11:28am

The whole People of the United States did ordain and establish their Constitution. The whole People delegated powers to the Government and expressly limited powers of both the general government and the states. Therefore, the Constitution cannot possibly be a contract.

Posted by: Nick Coons
02/02/2009 3:10pm

Dee,

There are two problems with your comment. First, if the whole people did, then that is what would make it a contract binding the whole people. Secondly, the whole people did not consent to the Constitution. I don't ever remember doing it.. do you?

Posted by: DagnyTaggart
05/18/2009 8:50pm

A couple of things.

The concept of people alive today not agreeing to the Constitution. Did this person forget about the people who were already alive when they were born? These individuals didn't spring into being from a quantum singularity. They had parents.

Have they forgotten their ability to alter or abolish the Constitution through vote/peaceful means? If you don't like it, then change it. They can attempt to change it by peaceful means or by violent, but either way they can't do it alone.

And What of the Supreme Court & Roe V. Wade? Do you even understand that decision? The Supreme Court decided that a woman's right to privacy, (and especially her Right as a human being to keep her own medical condition and/or pregnancy private), is beyond the review of the court system.

Posted by: Nick Coons
05/18/2009 9:40pm

Dagney,

<The concept of people alive today not agreeing to the Constitution. Did this person forget about the people who were already alive when they were born? These individuals didn't spring into being from a quantum singularity. They had parents.>

I'm not sure what your point here is. Surely you aren't arguing that my parents can legitimately enter into a contract on my behalf, or their parents on their behalf, binding the unwilling party.

<Have they forgotten their ability to alter or abolish the Constitution through vote/peaceful means? If you don't like it, then change it. They can attempt to change it by peaceful means or by violent, but either way they can't do it alone.>

What's the reason for changing a contract when it can't be shown that that contract is binding on parties to which it is imposed? For instance, I didn't sign the contract, I didn't agree to it, yet it imposes upon me. Why should I have to change it to remove the illegitimate imposition?

<And What of the Supreme Court & Roe V. Wade? Do you even understand that decision? The Supreme Court decided that a woman's right to privacy, (and especially her Right as a human being to keep her own medical condition and/or pregnancy private), is beyond the review of the court system.>

The Supreme Court did a lot more than that in that decision (otherwise the Texas law prohibiting abortion would have stood). Constitutionally, they had no authority to hear or make any ruling on the case. That's the point being made.

Posted by: David
05/19/2009 8:26am

This conversation is way out there folks!
Simply put. The constitution is the establishment of the rule of law by "We The People". It is indeed a contractual agreement that we as a society will be governed by a set of rules that "We The People" have established according to guidelines. Ideally, the constitution lays the framework for the most freedom an individual can have in a society without being an anarchy or a tyranny. The constitution stops majority rule (democracy) in its tracks, so as to retain the individuals rights. While at the same time protecting the majority from the individual. It does this by the establishment of laws that must be made according to guidelines by "We The People". We are the government!!
It is when "We The People" become disinterested and complacent that the individual is able to circumvent the system and create a tyranny. Or the majority are able to impose their will on the individual.
But I digress, you say you didn't agree to the contract? Go to anybody's house you choose and do something you know they wouldn't like. And when they tell you they don't allow that in their house, tell them you didn't agree to be bound by their rules. Freedom means freedom for all, not just you. Want a free society? The rule of law is the only way to have it! Otherwise, you get one of two extremes.

Posted by: Nick Coons
05/19/2009 8:58am

<Simply put. The constitution is the establishment of the rule of law by "We The People".>

No, it's not. It's an establishment of "those dead people over there."

<It is indeed a contractual agreement that we as a society will be governed by a set of rules that "We The People" have established according to guidelines.>

By what guidelines is it established? It's not; it's completely arbitrary in what powers it delegates that those in government will have over us, including the ability to infringe on our freedoms. There is no underlying principle on which the Constitution's provisions were created.

The Declaration of Independence is different. It establishes the principle that all are allowed their life, liberty, and pursuit of happiness. But the Constitution doesn't follow that principle (for instance, laying taxes is an infringement on liberty).

<Ideally, the constitution lays the framework for the most freedom an individual can have in a society without being an anarchy or a tyranny.>

Perhaps it attempts to do that, but it's quite a distance from that.

<The constitution stops majority rule (democracy) in its tracks, so as to retain the individuals rights.>

And we can see that that hasn't worked very well.

<But I digress, you say you didn't agree to the contract? Go to anybody's house you choose and do something you know they wouldn't like. And when they tell you they don't allow that in their house, tell them you didn't agree to be bound by their rules.>

I have to follow their rules because they can rightfully expel me from their house if they choose, as it's their property. If you're going to make that comparison to the Constitution, then you'll have to start with the premise that government owns the entire country, and therefore can dictate to "We The People".. good luck with that one :-).
Freedom means freedom for all, not just you. Want a free society? The rule of law is the only way to have it! Otherwise, you get one of two extremes.

Posted by: DagnyTaggart
05/19/2009 9:24am

<I'm not sure what your point here is. Surely you aren't arguing that my parents can legitimately enter into a contract on my behalf, or their parents on their behalf, binding the unwilling party.>

Yes. They do. It's common when you're considered "a minor" and not entrusted with the responsibility for your inherent Rights. For example, a 6 year old child has the RIGHT to bear arms, they simply can't handle the responsibility. Their parents make those decisions for them. Once you're 18 years of age (as is the custom in these United States), you're entrusted to make your own decisions. (and in some cases, even before that time.) Once you're emancipated at age 18 or at any point prior, then you may leave the country, run for office, or do any of the other Things that a free citizen may do.

Posted by: Nick Coons
05/19/2009 9:39am

<Yes. They do. It's common when you're considered "a minor" and not entrusted with the responsibility for your inherent Rights.>

Of course I'm referring to adults. My parents cannot enter into a contract on my behalf, as I'm an adult. At best, any contract they enter into on my behalf as a child does not bind me when I'm an adult.

Nevertheless, none of my ancestors signed or agreed to it either, so they didn't even bind me to it implicitly.

<Once you're 18 years of age (as is the custom in these United States), you're entrusted to make your own decisions. (and in some cases, even before that time.) Once you're emancipated at age 18 or at any point prior, then you may leave the country, run for office, or do any of the other Things that a free citizen may do.>

Ah, and now we get to the bottom of the issue. The idea that one implicitly agrees with the Constitution because they remain geographically here. There is, of course, a flaw in that.

When two parties contract about something, they can only bind property with which they own. I can contract to sell you a used card for $2,000, because I own the car and you own the $2,000. I can't contract to sell you my neighbor's car for $2,000, because it's his car (unless I first contract with him that I'm going to sell his car for him).

Likewise, if the government is to institute such a contract that says, "You agree or you leave," then they first have to have ownership over which they intend to control by those terms, aka, ownership of the entire country. But we know the government does not nor ever has owned the entire country (and the parts they claim to own are even questionable as to the means they used to acquire ownership).

I am perfectly content to reject the contract and remain right where I'm at, because there is no rightful authority to enforce a contract on me to which I have not agreed.

I have no quarrels with the establishment of a constitution in order to set up a structure of government. Such is similar to a local charter, or perhaps even an articles of incorporation for a business, which tell the members involved the structure of how things work. The problem is when such a document claims to have authority over uninvolved third parties. This is an initiation of force, which is un-libertarian.

I would recommend Lysander Spooner's "The Constitution of No Authority":
http://www.lysanderspooner.org/notreason.htm#no6

Posted by: Darren
05/19/2009 9:39am

Lysander Spooner covered this subject well in:
No Treason: The Constitution of No Authority
http://books.google.com/books?id=v4JwqWLONRkC&dq=%22No+Treason%22,+Constitution&printsec=frontcover&source=bl&ots=7wDSw_sDWS&sig=tDYqBKbpFRmTYaZPXiPlBkyi9yw&hl=en&ei=yN8SSsmdCsOrtgfFvdSPBA&sa=X&oi=book_result&ct=result&resnum=1#PPA1,M1

Posted by: David
05/19/2009 10:20am

Please accept my apologies. I read your reply the first time assuming that you had at least read and somewhat understood the documents our house was founded on. AKA, our country. I was in error. I will only say this then. Don't blame the documents for what "We The People" have allowed our servants in D.C. to get away with. And if you don't like the house rules, those documents have left a legal way for you to change them. But good luck with that, because unfortunately, we have allowed our servants to become our masters. And with our permission, they have divided and conquered us. So getting two people to agree on anything long enough to take back control of our house, so we can clean it up, is an improbability at best. But not an impossibility.

Posted by: Nick Coons
05/19/2009 12:03pm

<Please accept my apologies. I read your reply the first time assuming that you had at least read and somewhat understood the documents our house was founded on. AKA, our country. I was in error.>

You were not. I have read the Constitution many times and fully understand what it means.

<I will only say this then. Don't blame the documents for what "We The People" have allowed our servants in D.C. to get away with. And if you don't like the house rules, those documents have left a legal way for you to change them. But good luck with that, because unfortunately, we have allowed our servants to become our masters. And with our permission, they have divided and conquered us. So getting two people to agree on anything long enough to take back control of our house, so we can clean it up, is an improbability at best. But not an impossibility.>

Your error is in equating the country with a figurative "large house" over which the government has legitimate ownership.

My house is my property, and for that reason only I can rightly exercise my ownership of it, such as setting the rules, or requiring that anyone not following the rules must leave. The country does not belong to the government, nor to those that drafted the Constitution. That is, "the country" is not one single indivisible piece of property which on entity controls. I own and control my property, and you own and control yours. The only way the Constitution can exercise any authority over my property is if I explicitly agree to it, just as with any other contract (i.e. placing my signature upon it).

Let's say that I drafted a contract with your neighbor that I would paint your house and you would pay me to do so, noting that you never agreed to this contract. If, in the contract, I created a "legal" way for you to change the terms (i.e. get all of your neighbors to vote for the change), would you then say that this contract is legitimate? If you can't get the support of your neighbors, are you bound by the terms of this contract to which you did not agree? Certainly not, but this is what you are suggesting is true of the US Constitution, that I and everyone else who did not agree to it are somehow bound by its terms.

The fact that politicians and bureaucrats have not even held up their end of the "contract" is another matter entirely, and is not the one I'm addressing.

Posted by: paul
05/19/2009 12:30pm

You do agree to it. You live here. If you don't like it, leave. There are no laws and no barriers keeping you in. It's completely Libertarian. The property of this country is subject to its laws. Your desire to break down the laws decided on by the property owners is anti-Libertarian.

Posted by: Nick Coons
05/19/2009 12:54pm

<You do agree to it. You live here. If you don't like it, leave. There are no laws and no barriers keeping you in. It's completely Libertarian.>

Have you not been reading the rest of this thread? What you're arguing is absurd. Where does the authority for asserting the ultimatum "if you don't like it, leave" come from?

If you're going to contribute, then please don't parrot an argument that someone else has made previously to which I have already responded, unless you have something new to add to it.

<The property of this country is subject to its laws.>

Fine with me. My property is not the property of this country, it's the property of me, so it is not subject to this country's laws. But I'm sure that's not what you meant.

<Your desire to break down the laws decided on by the property owners is anti-Libertarian.>

Oh come on, you're almost there! Make that last logical connection and you'll have it. Who are the property owners of the country? "The country" is broken into many millions of pieces of property, each with their own owners.

Are you suggesting that these millions have set out these uniform rules for how their own property will be regulated? If so, you'll want to re-look at history. The Constitution was drafted by a handful of people, and agreed to by state legislators. At no point were these property owners you refer to allowed to exert their authority over their property.

Posted by: David
05/19/2009 4:30pm

Before I get back to the main topic, I just want to make one thing clear. In none of my posts do I give government ownership of anything. Not even the pencil they use to write legislation. As long as they are in office, they are nothing more than servants of the people who hired them to represent a constituency, and to do it within the boundaries set forth by the documents we consider the law of the land. This is role reversal at it's extreme. We are the government! They are our servants!

Now. Getting back to the topic at hand. We have a law in this country that says you can't kill me without just cause. We call it murder. But since you didn't agree to be bound by that law, it's ok for you to do it. Is that what I'm hearing? Or do I have it wrong?

Posted by: Nick Coons
05/19/2009 5:18pm

<Before I get back to the main topic, I just want to make one thing clear. In none of my posts do I give government ownership of anything.>

Good, then we are in agreement there.

<Now. Getting back to the topic at hand. We have a law in this country that says you can't kill me without just cause. We call it murder. But since you didn't agree to be bound by that law, it's ok for you to do it. Is that what I'm hearing? Or do I have it wrong?>

At this point it appears that we have a simple misunderstanding and not a philosophical difference, which is good.

To answer your question, no, that is not what you are hearing. Libertarians believe in the non-aggression principle, which can be summed up briefly as, "Anyone can do whatever they like, so long as they don't infringe on the rights of others." Based on libertarian principles, one cannot murder another, even in the absence of a document saying so, because that is an infringement on the rights of someone else.

There are other activities that infringe on the rights of others, such as slavery and theft. I cannot rightfully force you into serving me, nor can I take your property. You don't need a contract with me that says I can't take your property (or kill you). Just the opposite, in fact. If I am going to take your property, I need your consent first, which is generally given by contract (formally or informally). So if I'm going to take some of your money, I first need your permission.

Article I, Section 8 of the Constitution states in part that Congress may lay and collect taxes, which is another way of saying, "the government can take your money." But wait.. if someone is going to take your money, they need your permission first. Anything else is theft. If you signed or otherwise agreed to the Constitution, then you've provided your consent and Congress can tax you. If you haven't, then they have not received your permission, and their act of taking your money is theft.

And then you say, "but you are agreeing to the Constitution by remaining in the US," to which I respond that the only way the Constitution can claim the ultimatum "agree or leave" is if the authors of the contract first own the property they are requiring that you leave. I set the rules in my house because it's my house, so I can rightly say "agree or leave". But there is no entity that owns the property in the US, and so has no right to present anyone with that ultimatum.

Since you agree that government does not own the country, where do you suppose it gets the authority to initiate force against anyone (such as taxation and regulation)? The common answer is "the Constitution." And where does its authority come from? A contract has authority because all parties involved agree to it. And this brings me full circle to my original argument. I didn't agree to allow government to infringe on my rights, which the Constitution does.

Posted by: LibertyTreeBud
05/20/2009 9:47am

The Corporation came here to establish vast control for the king/queen. The congress/US govt. made a pact with the biggest land owners/chartered individuals to create national grid/make every other person lease land. 15 miles either side of track belongs to railroad owners. still does. only they can carry/create energy, ie. telegraph, telephone wires. all commerce near tracks is leased by railroad owership. We as free people entered into contract with a psychopathic corporation created by people loyal to british empire. They were industrialists and lawyers from England and europe who did the same thing there. Now that we are marxist/commie-rats/fascist scum, who needs to feel we have to keep contract? Let them re-write something and get us to comply, meanwhile, be cocked, locked and ready to go. Its the Concord to Boston hike all over again, only meaner.

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