Can We Restore Our Lost Constitution?

Mark over at South Puget Sound Libertarian had an excellent post that I wanted to reproduce for you here. It got me thinking and in responding to his post, I wrote out a pretty substantial piece. I've included my response to his post below. But first, here is his post:

I've been reading 2 books by Randy Barnett simultaneously. Well, not really simultaneously but alternatively. One is "The Structure of Liberty"; the other is "Restoring the Lost Constitution". Though I have finished neither book, they are truly fascinating and heroic efforts at trying to explain how liberty needs a legal structure to protect it and how the Constitution, properly interpreted and construed, could be the framework for that structure. Both of these books display Barnett's erudition, thoughtfulness, clarity and finally, hope.

I will finish both books but I have already come to the tentative conclusion that Barnett's ideas are a form of intellectual fantasizing. I mean that I see no way that political reality will ever result in a society governed as the Constitution intended. Our Constitution is dead and will not be revived. And, perhaps, it should not be. As Butler Shaffer has written:

If our thinking was influenced more by an experientially-based awareness of consequences implicit in our actions, and less by logical deductions drawn from abstract principles, we might avoid many adversities that reason, alone, cannot contemplate. Those who drafted the American constitution were doubtless as well-read, well-motivated, and thoughtful men as one would expect to find in any political undertaking. Even with the grasping hands of such men as Alexander Hamilton helping to weave its structure, the Constitution was probably created with the best intentions for which minds, fashioned by the "age of reason," might hope: a rational means for limiting state power.

The framers' dreams of a political system grounded in the illusion of a "social contract," and ruled by reason and fail-safe mechanisms to restrain power, has morphed into the realpolitik of the modern state. When the state is given the power to interpret words that define its authority, institutional self-interest will ensure constructions that serve state purposes.

It is neither abstract principles nor reason to which we ought to refer in assessing the shortcomings of "constitutionalism" and "limited government," but to historic experience.

So, how do we create a stateless society? Must we just wait for the present state to crumble? Will it then thrash out in deadly fashion as it dies? Is that what it is doing now? Is there a peaceful way to put the state to sleep permanently or must we physically escape it?

To which I replied:

You've asked a lot of good questions that I find myself asking, too. Has this grand experiment run its course? I think it has. But let me preface that comment by saying that the experiment was tampered with, and therefore is flawed. Much like a science experiment where someone sneezes over the petri dish, this one has also been contaminated and really should be started over. I see no way to call this one a failure or a success because the environment in which it was to grow in has been corrupted.

At this point, I really do believe that our system of government is not a good fit for such a large number of member states. It is far too big to be accountable to individual citizens. The monstrosity we have now needs to be reduced in size and scope. If this experiment were to be reset, I think that it should be limited to include no less than ten member states; but no more than twenty. Our country is extremely large and geographically diverse. Being out on the West Coast, we often feel disconnected from the head of government. Additionally, with the great distances involved for us to go and personally complain, we often feel left out of the political process. However, if the head were in Nevada, Oregon, Montana, or even right here in Washington, I'd be more able to tell them in person how I felt about their actions, etc. I think many, many more of us would.

That brings up another point. If this great experiment were to be reset, the responsibilities of the federal and state governments would need to be set in stone. Obviously the clear language of the Ninth and Tenth Amendments were not sufficiently worded for politicians to understand. To paraphrase those two amendments for readers who don't have their copy of the Bill of Rights: (With regard to federal authority--) Unless it clearly says you can, you can't. Period! Hands off.

When it comes to federal authority, I liken it to the states having a child in common. This child, once it got old enough to walk on it's own, began to test its boundaries. In the beginning, the states were pretty good about putting their child in its place when it strayed too far. As time went on, though, the child grew into a bratty teenager who knew everything. At some point, their teenager figured out how to pick the states' pocketbooks, and has grown in size ever since. The states should have stopped the theft when it became obvious, but for whatever reason, they did not. May be their collective conscience didn't want to. (Of course, that little voice of conscience would be you and me.) I suspect that the states didn't want to, because the federal teenager made the states accomplices to the theft through aid and grant moneys. But, that's a topic for another day.

Do we need government? Unfortunately, the answer is yes. Unless you live alone on an island, you will always need an arbiter for disputes: an unbiased third person for conflict resolution. Some things must be handled by a third to be considered fair. The correct question is how much authority should be vested in that third? In my opinion, the absolute minimum at most. If a resolution can be had without government interference, than that avenue should be taken. We should always operate from the assumed position that it is always none of government's business. In other words, unless they're invited into the conversation by either party, they need to butt out. Furthermore, all disputes need to be handled locally whenever possible. It should be the rare case that finds it's way to the purview of the federal government. The federal government's responsibilities need to be clear and concise. We've been doing this for over two hundred years. We should, I think, be able to word a constitution that clearly delineates federal responsibilities in such a way as to avoid questions of what was meant when the constitution was originally written. The original intent must always be clear.

As to how this experiment ends, I think we can let this one end in one of two different ways. The first would be for Americans to kill the experiment by removing its food supply (a.k.a. money). The other would be to let this monster in the petri dish become our Frankenstein. Eventually, town folk (probably represented by other countries) will chase it down and kill it when it becomes too bothersome. If the latter happens, the rule of "He who broke it, buys it" comes into play. Much like Iraq, we may find ourselves being "democratized" by the EU or some other joint venture (China, Russia, Iran, Korea...) conglomerate. Obviously, the better choice would be the first.

In closing, I think we all need to remember that we ultimately are responsible for the actions of our government much like parents are responsible for the actions of their children. With that responsibility comes the task of disciplining our government when it has been bad. Look, government is not a thing; it's an idea. We can no more kill government in the physical sense as we can hold it. If we all threw up our hands and said, "Screw it! It's just not working!" and went our separate ways, our government would cease to exist. It would be gone. Killing it would be just that easy. We could all just decide that we don't like it anymore and we want to quit it or change it. Then we would follow through on our decision and it would be done.

I believe the Founding Fathers realized that the creation of government was just that easy. They realized that each and every one of them was the most important person at the table, and that all of them were free to choose to participate. Likewise, they were free to disassociate if the terms weren't to their liking. A government is not some magical thing that must be carried around in a golden ark or some such nonsense. Governments are merely agreements between people on how to structure their societies. They consist of a set of rules that participants agree to live by. If everyone agrees to the rules, you have mutual consent that creates a body of the governed -- nothing more. If society's rules become too restrictive, then those governing rules will have to change or that society will wither and die. A quick look at human history can evidence this. Civilizations spring up, grow, and eventually die out. It's all part of society's lifecycle.

We need to heed the words of Thomas Jefferson when he wrote that, "Governments long established should not be changed for light and transient Causes." This restraint, however, should not be used by the people to excuse abuses by their government. Once we realize that it's OK for us to change, rearrange, or dissolve our government, the better off we'll be. Of course, all of this is predicated on the belief that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." This is the foundation on which any society should be built. And the most important and fundamental purpose for creating any form of government is to secure these rights. All we need to do is act on our beliefs and change will happen. After all, our society is what we make of it -- nothing more.