"Living Document" Constitution
To the Tips & Tricks group:
There has been a long-term running battle between those who understand
the U.S. Constitution as being grounded in “Original Intent” of the Founders
vs. those who view the Constitution as a “Living Document” subject to alteration
and modification according to the changing times. The following quotations
are from the Hillsdale College publication “Imprimis” – Lat. for “in the first place,”
March 2008 issue. Some people have difficulty comprehending the mindset of
liberals and social reformers and how destructive of Natural Rights their ideas have
been and how pervasive and ruinous their ideas have been to the social fabric
of the once free people of the United States and on their relationship to government
and on the entire system of jurisprudence – the courts of the land.
Here is the major portion of a speech delivered at Hillsdale College on January 30,
2008 by Charles R. Kesler, professor of government at Claremont McKenna College
entitled “Limited Government: Are the Good Times Really Over?”
He introduces the subject by saying, “I want to talk about seven propositions related
to the problem of limited government in our day.”
He makes 3 Points under the caption of “Limited Does Not Mean Small or Weak”.
Point No. 1 – Proposition one: Limited government can be distinguished from small
government. In 1930, before the New Deal, federal spending was 3.4 percent of GDP,
whereas today it is about seven times that...At the height of Word War Two, for example,
the federal government spent 43.6 percent of GDP...There are instances in which the
government can be big and expensive and yet its purposes remain limited.
Point No. 2 – Proposition two: Limited government can enhance our freedom – even
though it costs money...The libertarian point of view associated with Ron Paul – every
dollar that government spends comes at the cost of freedom. The premise of this
view is that government and freedom are opposites – that all government is oppression.
By this way of thinking, limited government is simply limited oppression, differing in
magnitude but not in kind from tyranny. Interestingly, this notion does not come originally
from any libertarian thinker or friend of freedom. It comes from Machiavelli, the great
analyst of open and hidden power, of force and fraud. From Machiavelli’s point of view,
there’s difference between just and unjust government, which are the same phenomenon
called by different names. All government, whether considered to be just or unjust, is
oppression. Just government is the kind we happen to agree with and profit from, and
unjust in the opposite kind.
Against this view stand the American Founders and the greatest statesmen, who have
always sharply distinguished between just and unjust – or between free and tyrannical –
forms of government. What is the Declaration of Independence but a great meditation
on the difference between absolute despotism contemplated by King George III and the
freedom that the Americans hoped to enjoy under their own form of self-government?
The Declaration does not proclaim that just government is merely less oppressive than
unjust government – as if the American republic and, say, Nazi Germany were separated
only by degrees of tyranny. Our ancestors thought that republican governments like ours
were good because, grounded in human nature and operating by law and consent, they
affirmed human liberty. Though fundamentally devoted to the protection of our natural
rights, such governments, especially at the local level, might also provide instruction in
morality, because republican habits and customs are needed to shape a republican
citizenry who can keep government limited, and who have the character to make liberty
something good and enduring.
Point No. 3 – Proposition three: Limited government can be compatible with energetic
government. That is, limited government doesn’t mean government that does as little
as possible. To fight terrorists, or even to arrest and prosecute criminals, requires an
energetic government, especially in the executive branch. While our Founders were
not uninterested in the question of the sum of power granted to the federal government,
they were more interested in the kinds and distribution of powers that would be confirmed
by the Constitution. They moved the debate from power (singular) to powers (plural);
hence their profound thoughts on the separation of powers. Separation was meant both
to prevent the worst and to enable the best kind of government. It was designed to
prevent tyranny by not allowing one or more branches to escape law or encroach on
the other branches. But it was also designed to allow each branch to perform its duty
well – to keep the judicial power judicious, the legislative power deliberative, and the
executive power energetic. So long as the objects or purposes of the federal government
were kept to a few great ends – for example, diplomacy, national defense, regulating
interstate commerce – the means to those ends could be construed more or less
liberally and safely.
Under the caption: Constitution vs. The State
Point No. 4, Proposition four: Limited government must be constitutional government.
Government must be limited to its proper ends, but it means must be capable of
effecting those ends. To resolve these goals was the great achievement of the
political science of the Founding Fathers, whose emblem was the Constitution; or
to be more precise, the Constitution as seen in the light of the principles of the
Declaration of Independence.
Point No. 5, Proposition five: Limited government in the sense of constitutional
government, is opposed to the political assumptions of the modern state, which
arose after the New Deal. Those assumptions came largely from the political
science of the Progressive era, whose proponents argued that the Founders’
limited government was an 18th century nostrum that was powerless to solve
20th century problems. From this point of view, natural rights were an immature
form of genuine right, enshrining egoism and individualism that might have been
necessary for frontier farmers but made no sense in an interdependent, industrial
society. The Progressives believed that freedom did not come from nature or (the
Creator, as endowments from Heaven), but instead is a product of the state and
is realized only in the modern state. Far from being the people’s servant and,
therefore, a possible threat to freedom – because servants can be unfaithful –
the state is the full ethical expression of a people. The state is the people and
the people are the state. This strange use of the term represents the Progressive
attempt to translate the German concept of DER STAAAT into American politics.
America did not have a state theory of this sort until the Progressive era.
Conservative and most libertarian anti-statism arose in opposition to this
innovation; but too often, in recent years, hostility to DER STAAT has been
confused with opposition to government per se.
To put the difference more plainly, consider Woodrow Wilson’s insistence that
“living political constitutions must be Darwinian in structure and practice.” In short,
it is not the LIMITED Constitution of the Founders, but the LIVING Constitution,
which is the ideal of Progressives and of modern liberal theory and practice. A
fixed or limited Constitution would make sense if human rights are fixed and
unchanging, as the Declaration affirms. But if human rights are essentially
historical or evolutionary, then we should want a Constitution that is free to
adapt and evolve along with them. In theory, then, no A PRIORI limitations on
government power – whether property rights, speech rights, or even religious
freedom – can be allowed to impinge on government’s ability to bring about
historical liberation. The old or natural rights have to be sacrificed in order to
achieve the new rights of self-fulfillment. Thus for the Progressives – as for
Barack Obama many (other) liberals today – political tyranny is no longer the
ever-present threat that was considered to be by James Madison or Alexander
Hamilton. In liberal eyes, the real political threat is not tyrannical government or
even the tyranny of the majority, but the well-connected capitalists, the “economic
royalists” hiding behind the façade of democracy, who manipulate things to their
advantage. Liberals ever since the New Deal have argued that limited government
must become unlimited, in order to prevent the few from becoming tyrannical.
A new theory of the Constitution corresponded to the new theory of rights. FDR put
it memorably in his 1932 Commonwealth Club Address: Government is a contract
under which “rulers were accorded power, and the people consented to that power
on consideration that they be accorded certain rights.” According to this view, we
give the rulers power and the rulers give us rights. In other words, rights are no longer
natural or (Creator)-given, but emerge from a bargain struck with the government.
And it is up to liberal statesmen or leaders to keep the bargain current, redefining
rights constantly – adding new rights and subtracting some of the old ones – in
order to keep the living Constitution in tune with the times. Entitlement rights –
rights created and funded by government – replace natural rights. Given this new
relationship of people and government, we don’t need to keep a jealous eye on
government anymore, because the more power we give it, the more rights and
benefits it gives us back – Social Security, Medicare, prescription drug benefits,
unemployment insurance, and on and on.
Under the caption: Still a Time for Choosing
Point No. 6, Proposition six: The decline of limited government in the 20th century
was not inevitable. Modern liberals would have us believe that big government was
necessitated by new circumstances – the Industrial Revolution, the joint stock
corporation, technological and economic developments, etc. The assertion that
the growth of state power was inevitable – that it was all part of the Darwinian
process that allowed democracy to survive the hostile environment of the 20th
century – is part of big government’s mystique and power: You can’t think about
an alternative to big government, after all, if you regard it as inevitable. The claim
of inevitability, however, has been exploded by, among others, Robert Higgs, in a
very good book called CRISIS AND LEVIATHAN. What that book shows is that
America’s state apparatus didn’t grow uniformly in response to the new conditions
of the 20th century, but rather in fits and starts, usually in response to political or
Return, for a moment, to the GDP figure as a rough indicator of the size of government:
It rises dramatically in World War One, again in response to the Depression and the
New Deal, again in World War Two, and then again in the early part of the Cold War,
and then again with the Great Society in the mid-1960s. Between these sudden jumps
we see almost flat lines. In fact, there is a slight decrease in government after each of
these periods, but the new level is always higher than the previous one – something
Higgs calls the “ratchet effect.” The importance of this fact – that growth in government
has been the result of choices in response to changing political conditions – is that it
disproves the notion that big government was somehow fated. It reminds us of Aristotle’s
argument that regimes change in part because of changing demographic or other
circumstances, but mostly because of choices that are made by those who rule. This
ought to give us confidence that the continued growth of government is not inevitable.
But a word of caution: Neither is big government’s DEMISE inevitable. Sometimes
conservatives and even libertarians predict that big government is doomed. Some
point to modern technology as the savior: The rise of personal computers and the
microchip, along with the move away from mass production toward small batch,
specialized production, was supposed to mean that modern, top-down bureaucracy
was obsolete. But it hasn’t worked out that way. Other conservatives suggest that
the demographic wall we’re going to hit when the Baby Boomers retire will eventually
require cuts in entitlements. That is possible, but it is also possible that taxes will be
raised and that a larger fraction of the national economy will be socialized.
Point No. 7, Proposition seven: His seventh and concluding proposition: Limited
government is not a lost cause. The subtitle for this talk, “Are the Good Times Really
Over?” is inspired by a Merle Haggard country song of that title. It asked the question,
“Are we rolling downhill / like a snowball headed for hell?” But after indicating the
current situation – it was written late in the era of Jimmy Carter, when there was
much to despair about – the song ends in a positive refrain, to “Stand up for the flag /
and let’s all ring the Liberty Bell.” That’s good advice, and it’s advice that will help.
But the restoration of constitutional government will require a lot more from us. It will
require searching political reconsideration as well as profound political prudence,
neither of which has been on offer, so far, in the 2008 presidential campaign.
End of article by professor Kesler.
There is an ancient maxim, probably originally Latin, that goes like this: THAT WHICH
YOU WON’T DEFEND MUST NOT BE IMPORTANT TO YOU. It has been said that
the greatest s-n is ingratitude. The vast majority of Americans have impugned and
disregarded the Natural Rights that are inherent in us as a gift or endowment from our Creator,
and accepted man-made “entitlement rights” and “statutory privileges” instead, an exchange
equivalent to a “mess of pottage” – iron pyrite (fool’s gold) taken in delusional preference
to genuine gold. The great majority of Americans have lost the ability to distinguish the
difference. This knowledge is important, in fact KEY, to being able to deal with the “system”
and the courts. It falls into the category, I think, of “Know Your Enemy.” Cradle to the Grave
Socialism or Womb to Tomb Socialism definitely IS NOT what the Founding Fathers envisioned.
Frog Farmer is one of the “less than one percent” who is willing to stand on principle and defend the
Creator’s gift to us – Natural Rights. It is a sad commentary that he was called “one in a million”
for giving top priority to the Creator’s Natural Rights.
Best regards from Virgil
- Nice post, Virgil. I must, however, take issue with Point No. 2. If our ancestors thought Republican governments like ours were good they would not have said government is a necessary evil that must be kept in chains. I think that was Thomas Jefferson.I am not suggesting that we don't have the best form of government currently on the planet; only that it is the lesser of evils and the stronger the chains, the better off we are.Richard Gieser
You rock. That's why Blockbuster's offering you one month of Blockbuster Total Access, No Cost.
- ----- Original Message -----From: Richard GieserSubject: Re: [tips_and_tricks] "Living Document" ConstitutionNice post, Virgil. I must, however, take issue with Point No. 2. If our ancestors thought Republican governments like ours were good they would not have said government is a necessary evil that must be kept in chains. I think that was Thomas Jefferson.I am not suggesting that we don't have the best form of government currently on the planet; only that it is the lesser of evils and the stronger the chains, the better off we are.Richard Gieser
Richard, (and all) I question if we do have strong enough chains. The 7th amendment says that all controversies over 21 dollars, are entitled to a jury trial for determination. Yet we now have 2 government entities that can take your pay or property without a court order - the IRS and the US Dept of Education.
I believe both are a direct violation of various amendments, which are by their design, constraints on government power.
- Virgil Cooper wrote:
> There has been a long-term running battle betweenI can accept the changes if done according to the rules. If they do not
> those who understand the U.S. Constitution as being
> grounded in "Original Intent" of the Founders
> vs. those who view the Constitution as a "Living
> Document" subject to alteration and modification
> according to the changing times.
care enough to do it right, then it didn't get done, no matter how many
wish it had been. I can explain how the 14th, 16th and 17th never
really got done. For me, they are not "amendments" but wishful thinking
on the part of some people. Some people gloss over rule violations when
it suits them. Would they like to trade, mine for theirs?
I live in a special place. Nobody wants to rock the boat.
- The ending "ment" on the word government is similar to or related to "ing." The endings "ent" (or minor variants) in French and "ando" in Spanish have been adopted with certain words in English. The French word for government is "gouvernement."
Webster's Revised Unabridged Dictionary
-ment-ment\, [F. -ment, L. -mentum.] A suffix denoting that which does a thing; an act or process; the result of an act or process; state or condition; as, aliment, that which nourishes, ornament, increment; fragment, piece broken, segment; abridgment, act of abridging, imprisonment, movement, adjournment; amazement, state of being amazed, astonishment. Webster's Revised Unabridged Dictionary, © 1996, 1998 MICRA, Inc.
For all to consider:
De constructing the word "Government"
govern; a: to control, direct, or strongly influence the actions and
conduct of b: to exert a determining or guiding influence in or over.