About This Blog

Ludwig von Mises (1881-1973) was the greatest economist of my time. His greatest works can be accessed here at no charge.

Mises believed that property, freedom and peace are and should be the hallmarks of a satisfying and prosperous society. I agree. Mises proved beyond a shadow of a doubt that the prospect for general and individual prosperity is maximized, indeed, is only possible, if the principle of private property reigns supreme. What's yours is yours. What's mine is mine. When the line between yours and mine is smudged, the door to conflict opens. Without freedom (individual liberty of action) the principle of private property is neutered and the free market, which is the child of property and freedom and the mother of prosperity and satisfaction, cannot exist. Peace is the goal of a prosperous and satisfying society of free individuals, not peace which is purchased by submission to the enemies of property and freedom, but peace which results from the unyielding defense of these principles against all who challenge them.

In this blog I measure American society against the metrics of property, freedom and peace.

Friday, May 4, 2012

Dreams From My Founding Fathers: Plugging Loopholes In The Constitution

In his new book, which I highly recommend, Principled Action: Lessons from the Origins of the American Republic, James D. Best writes that the "Founders wanted to bequeath to posterity a straightforward government that inhibited the abuse of power." This seems a simple and easy observation.

The authors of our Constitution, men like Gouverneur Morris and James Madison, were by and large truly noble and honest individuals, grounded in the principles of property, freedom and peace. They suffered the consequences of the grave abuse of power first hand. They were well acquainted with the problem of regal tyranny. They had found in the philosophy of the Enlightenment their answer to it. Clearly, their purpose was to fashion a written Constitution designed to safeguard the rights of individuals and to prevent, as far as is humanly possible, the centralized American authority from being corrupted by tyrannical power.

Unfortunately, there were other Founders, men like Alexander Hamilton, who were less concerned about the dangers of centralized power. Like many today who strive to create the strongest federal government possible, Hamilton came from New York, a large, populous, northern, coastal state. As is the case today, the debate between those who advocated and those who disavowed a strong federal authority was furious, lengthy and bitter. 

The Federalists believed in supplanting the Articles of Confederation with a new Constitution that created a strong, central government with many checks and balances. The Anti-Federalists argued against the adoption of this new Constitution. They feared that the strong central authority created by the new Constitution would soon begin to abuse its powers. They advocated for continued and vigorous states' rights.

One of my favorite Anti-Federalist writers was "Brutus," the pen name used, presumably, by Robert Yates, a politician and judge who, ironically, also hailed from New York. Brutus argued that the new Constitution's language would in time lose its original force and intent, and open the door to unlimited, federal power and authority. He saw the Constitution as an enabler of tyranny in the future. Indeed, he pointed out that, while certain of his fellow Founders did not advocate tyranny, they openly argued for the kind of unlimited federal power and authority that was certain to be abused. 

In Anti-Federalist Number 33 Brutus takes a rhetorical shot at Hamilton:
This same writer [Hamilton] insinuates, that the opponents to the plan promulgated by the convention, manifests a want of candor, in objecting to the extent of the powers proposed to be vested in this government; because he asserts, with an air of confidence, that the powers ought to be unlimited as to the object to which they extend; and that this position, if not self-evident, is at least clearly demonstrated by the foregoing mode of reasoning. But with submission to this author's better judgment, I humbly conceive his reasoning will appear, upon examination, more specious than solid. The means, says the gentleman, ought to be proportioned to the end. Admit the proposition to be true, it is then necessary to inquire, what is the end of the government of the United States, in order to draw any just conclusions from it. Is this end simply to preserve the general government, and to provide for the common defense and general welfare of the union only? Certainly not. For beside this, the state governments are to be supported, and provision made for the managing such of their internal concerns as are allotted to them. It is admitted "that the circumstances of our country are such as to demand a compound instead of a simple, a confederate instead of a sole, government," that the objects of each ought to be pointed out, and that each ought to possess ample authority to execute the powers committed to them. [emphasis mine]
Brutus is not inferring or exaggerating Hamilton's position. In Federalist Number 23 Hamilton writes:
Whether there ought to be a federal government intrusted with the care of the common defense, is a question in the first instance, open for discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to complete execution of its trust. And unless it can be shown that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this position can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the formation, direction, or support of the NATIONAL FORCES.  [bold type mine]
Ostensibly, Hamilton is arguing that in matters of the military defense of the nation the powers of the federal government should be unlimited. However, Brutus worried that such unlimited powers created a slippery slope, and unchecked power would soon flow into other areas of the federal authority. Brutus argued that the slippery slope was created by three particularly vague clauses in the proposed Constitution. James D. Best writes about these very same clauses from the perspective of the 21st century:
Their [the Founders] written words remain clear. Certain politicians and judges have skewed their meaning to  do what they want, but most of the harm can be attributed to three clauses:
1. The necessary and proper clause,
2  The commerce clause,
3. And the general welfare clause.
It is nonsensical to assert that the Founders meant for any of these clauses to license general national authority.
No one can dispute that Brutus' fears have materialized in modern America. The clauses in question have been used by the central, federal government to expand its power, a power that it now inserts into virtually every corner of the lives of individual Americans. Brutus feared that the federal government would expand and keep its near absolute power over the people by abusing its authority to tax. These fears too are today realized.

In Anti-federalist Number 32 Brutus excoriates the open-ended "power to lay and collect taxes" given to the federal government by the proposed Constitution:
To detail the particulars comprehended in the general terms, taxes, duties, imposts and excises, would require a volume, instead of a single piece in a newspaper. Indeed it would be a task far beyond my ability, and to which no one can be competent, unless possessed of a mind capable of comprehending every possible source of revenue; for they extend to every possible way of raising money, whether by direct or indirect taxation. Under this clause may be imposed a poll tax, a land tax, a tax on houses and buildings, on windows and fireplaces, on cattle and on all kinds of personal property. It extends to duties on all kinds of goods to any amount, to tonnage and poundage on vessels, to duties on written instruments, newspapers, almanacks, and books. It comprehends an excise on all kinds of liquors, spirits, wines, cider, beer, etc., and indeed takes in duty or excise on every necessary or conveniency of life, whether of foreign or home growth or manufactory. In short, we can have no conception of any way in which a government can raise money from the people, but what is included in one or other of these general terms. We may say then that this clause commits to the hands of the general legislature every conceivable source of revenue within the United States, Not only are these terms very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy. It opens a door to the appointment of a swarm of revenue and excise collectors to prey upon the honest and industrious part of the community, [and] eat up their substance. . . . [emphasis mine]
According to one historian, the "Federalist writers never responded" to Brutus. How could they? His logic was impeccable; his prescience, undeniable.

The question now is: What can be done today, if anything, to plug these loopholes in our most important, founding document, the fundamental law of the land?

Like Brutus, I believe the crux of the problem in our Constitutional republic today is the federal government's abusive "power to lay and collect taxes" in order to "provide for the...general Welfare of the United States." A tyrannical central authority in Washington is further enabled by the odious "necessary and proper" clause in Article One, Section 8 of the US Constitution. Therefore, an amendment might be drafted which modifies the language of the Constitution to eliminate the phrases "general Welfare" and "necessary and proper." But such an effort would fail miserably and I do not recommend it.

The edifice of modern Progressivism, which is simply a pseudonym for tyranny because it makes a shambles of the principles of private property and individual liberty, is built upon the foundation of the vague clauses in question. Progressives would undoubtedly resist any effort to eliminate them from the Constitution with all their collective fervor and might, not to mention mendacity. Who today can craft a persuasive argument that the Congress of the United States should not be able to make all laws "necessary and proper" in order to provide for the "general welfare" of the United States? In the context of the progressive and collectivist social philosophy which has overwhelmed today's American population, such an argument would bepolitically dead on arrival. The debate for such an amendment would be short-lived and almost immediately laughed off.

I propose a new Amendment to the Constitution that would not modify the ends of our Constitution, but would amend the allowable means by which the ends can be attained. I will not attempt to frame my proposed Amendment in the proper legal language. The legal eagles can take care of that chore. However, the simple gist of my Amendment is as follows.

Currently, by my best estimate, about half of all federal spending is in transfer payments. Essentially, this is federally facilitated redistribution of income, i.e., the government takes via taxes from some individuals and gives via stipends, subsidies and other payments to other individuals, businesses and the like. In short, some Americans send the checks to the US Treasury and other Americans, in turn, get checks from the US Treasury. My Amendment proposes to eliminate the middleman, i.e., the US Treasury.

The way it would work according to my Amendment is that every individual American who is authorized by Congress to receive a transfer payment check would be given the name, address and phone number of a specific individual American taxpayer or taxpayers. It would then be the responsibility of the transfer payment recipient to personally collect their payment directly from their designated tax provider.

The beauty of this system is that it undercuts any progressive argument against it. My amendment doesn't prohibit the central federal authority from providing for the "general welfare." It merely specifies the means by which such "general welfare" must be provided. What argument, then, can the progressives make against it?

Will they argue that it is immoral to take from each according to his ability and give to each according to his need? This is exactly what they advocate now and what is happening now in this nation.

Will they argue that the means my Amendment specifies are too harsh, too in-your-face for polite society? Will they argue my Amendment is sure to create social unrest and conflict? But why would this be the case if the people genuinely approve of and believe in the principle of income redistribution?

I don't expect my Amendment to be officially proposed or ratified. However, I do expect the debate over my amendment to be very, very enlightening for a lot of Americans.

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