Countless liberty advocates view the U.S. Constitution as the guiding star of a free society.

But then there’s reality. The government’s endless lies and scandals, the revolting cronyism, the insane economic debauchery, the brutal police state, the imperialistic militarism, the morass of criminalizing regulations, mass surveillance…the list goes on and on.

Believers in the Constitution say the solution to all these horrors – the key to a free society – lies in the government following the Constitution more closely.

This is the context for recounting a conversation I had with a certain former superior court judge and renowned Constitutional scholar. (I didn’t know I’d be writing about this at the time, or I would have asked permission to cite him by name.)

Suffice to say, I started the conversation explaining why I believe the Constitution is a sham. I not only expected him to disagree with me but also to school me in both the literal and figurative sense of the word. Before sharing what happened, more background is in order.

The Problem

The premise of Constitutionalists is that somewhere along the line the government stopped taking the Constitution seriously. They point out that the government only follows it when convenient and doesn’t hesitate to ignore or circumvent it.

The gist is that the Constitution is a bargain between the government and the governed. Constitutionalists are upset that the government isn’t upholding its end of the bargain. They talk in terms of the government “trampling” the document which was written to restrain state power from continually expanding and centralizing. Said trampling is extremely distressing to Constitution lovers because the document was supposed to be the safeguard against a Leviathan state (i.e. a massive and oppressive government). Some even view the document with a sense of religiosity, as if it’s a sacred instrument which can set us free.

McNaughton-Constitution

Several commentators and media personalities have built a sizable following by advancing the message that if “the People” can get the government to stop the trampling, a free society will follow and the list of horrors at the outset of this essay will be dispatched. If that’s true, it seems obvious that “Restore the Constitution” should be the urgent call to action for any lover of liberty.

Ron Paul is the most famous Constitutionalist, having spent decades tirelessly denouncing both parties for ignoring the Constitution. Although his long career as a politician is over, his faith in the Constitution continues. His web site tells us, “The U.S. Constitution is at the heart of what the Campaign for Liberty stands for.”

A Challenge

I share the goal of wanting a freer society. I think about it – I truly long for it – every day. If you’re a Constitutionalist, I challenge you to entertain the notion that the Constitution is not the solution to a freer life or a freer society. I ask you to consider my explanation for why it’s part of the problem.

The Constitution’s construction was never going to constrain the government from doing whatever it wished to do, from invading nations, spying on everyone, imposing a global tax regime, imprisoning millions for victimless crimes, or conjuring trillions of new dollars through the Federal Reserve cartel to bail out and enrich its cronies. I’m always open to changing my views (and my talk with the judge helped me clarify what I believe), so please give me an open-minded hearing. If my reasoning isn’t sound, let me know.

Law of the Land

The United States Constitution is, to quote the document, “the supreme Law of the Land.” Law is defined by Merriam-Webster as “the whole system or set of rules made by the government.” In other words, the law as a whole is the collection of rules that politicians have made up. Every individual within the U.S. political jurisdiction is automatically opted into its system and set of rules.

Every year politicians create thousands of new laws. They are incorporated into volumes consisting of hundreds of thousands of pages of legalese. The laws are grouped into “codes” such as the CFR, USCIRS Code, and codes for every state. These codes, along with the Constitution, executive orders, ratified treaties, county and city ordinances, and rulings from district courts to the Supreme Court comprise U.S. law as a whole.

We’re talking hundreds of thousands of pages of legalese. Literally.

It is the obligation of every citizen to comply with all these rules under threat of punishment. Not knowing the rules – in other words, ignorance of the law – is not a valid defense even though the law’s dizzying scope and complexity make it incomprehensible.

Enforcement

Who enforces the demand to comply with the system and its rules? It starts at the top with an oath by the President to “preserve, protect and defend the Constitution.” By no coincidence the President is also the commander of all government military forces. Accordingly, every military agent under the President’s command swears an oath “to support and defend the Constitution” and “obey the orders of the President of the United States.”

Further, the domestic enforcers of the law, the police, also swear to uphold the Constitution. Note that all these people with weapons and cages at their disposal are government employees whose salaries are compulsorily funded by the individuals they purport to represent via the assumed authority of the Constitution.

Assumed Consent

Because individuals don’t get to approve or reject the Constitution whole cloth, much less its individual provisions, or the thousands of agencies and countless laws that spawn from it, your consent is assumed on your behalf by the government. Based on that assumed consent your compliance is demanded.

The Constitution purports to be the American social contract. A social contract is a concept which attempts to explain why authority of the government over individuals is legitimate. “Social contract arguments typically posit that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms…in exchange for protection of their remaining rights.”

Let’s be blunt about what this means: The government assumes your consent and demands your compliance in return for opting you into its protection racket. Ever been informed that you sleep soundly in your bed or are free to voice your opinions only because the government’s troops fight to protect you? This is the protection racket dynamic at work. The continual urgings to thank and support the troops are meant to reinforce the legitimacy of the arrangement. The shibboleth “freedom isn’t free” is indeed true in the context of being opted into this protection racket.

And what to do if you don’t agree with the government’s ever-changing notion of freedom or the price it extracts for providing it? The fact that you’re not revolting or willing to take up arms to extricate yourself is proof of your consent, no? We’re told our option is to “love it or leave it.” In other words, abandon your property, family, friends, career, and culture if you don’t want to be party to the racket. Ironically the U.S. is the only nation that enforces a global taxation regime, so leaving it doesn’t actually relieve you from paying your flag lapel-pinned “servants.”

Objection to the Social Contract

Many liberty advocates will be pounding the table by now saying they don’t buy the social contract argument. As individuals with sole agency over their actions, the premise of strangers opting them into a system and their rules under threat of death for non-compliance has no moral justification.

After all, law as we know it has little to do with simply prohibiting murder, theft, and assault. Most crimes are non-violent acts which simply amount to breaking politicians’ rules. It’s estimated that victimless crime accounts for 86% of the federal prison population.

Objection to the automatic opt-in was given full voice by 19th century lawyer-abolitionist-entrepreneur-philosopher Lysander Spooner. His famed essay No Treason points out that the social contract gambit is illegitimate because the government drops the hammer on anyone who doesn’t agree to be party to the contract. Therefore, any agreement that you can’t voluntarily enter into isn’t a valid or binding agreement.

But…The Bill of Rights!

Since most people, Constitutionalists included, are convinced of the need for the institution of government, let’s continue examining the premise of the Constitution as a social contract where people submit to the government’s decrees in exchange for its protection of our remaining rights.

This is where the Bill of Rights comes in. It enumerates rights that will supposedly be protected in return for our compliance. So, for example, the government may decide to forbid you from ingesting various liquids or plants and yet promise under the Fourth Amendment not to arbitrarily spy on you or search your property for said liquids or plants.

The Fifth Amendment promises due process if it accuses you of disobeying one of its rules, and the Sixth Amendment assures a fair and speedy trial with specific charges backed by evidence presented in one of its courts. This is all to guarantee the People that the government will never arbitrarily cage people for years or summarily execute citizens or their children.

That over 90 percent of the government’s prosecutions never see a Constitutionally-guaranteed trial seems incomprehensible until you remember: The government makes the rules. Who goes to trial when it’s the equivalent of Russian roulette?: “The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial.”

The system truly is rigged against you, and if you risk going to trial your odds of conviction are around 90 percent.

The Sham

At last this brings us to the sham. A sham is defined as “something that is not what it appears to be and that is meant to trick or deceive people.” So why is the Constitution a sham even if you buy into it being a social contract?

The answer is the Constitution’s phony method of dispute resolution. The government demands that it be the judge of any dispute between those it governs and itself. In other words, if you say the government’s done something wrong, it’ll be the judge of that. Has the government violated your rights? Not unless a government court run by government employees says so.

We often don’t even know what the government has decided to do to us because its decisions are made by secret court rulings. Is that constitutional? Let the government’s courts decide!

Imagine entering into a contract with a person where the contract appointed him as the judge of any dispute. In the event the person violated the terms of the contract and caused you terrible damages, as judge he would be in the position to say, “Upon my review of this case, I find that I did nothing wrong. Case closed.” This sham construction epitomizes why the government has with such abandon broken its own rules on countless occasions. People tend to be queasy about monopolies. Well, here we have a monopoly on both law creation and law enforcement.

Sham.

I’m not a lawyer, but I’ve been party to many contracts. The patent ridiculousness of this monopoly over adjudication always bothered me. I took the opportunity I had with the judge to find out if I was missing the mark. When I gave the background and explained why the whole thing seemed absurd, he said, “You’re right, it is absurd. No valid legal agreement permits one of the parties to act as judge.”

Justice Undefined

This led to a conversation with the judge about justice, something the government purports to provide in the preamble to the Constitution. I told him I’d never heard a satisfactory definition of justice, so I asked what he thought the proper definition is. He looked at me, dead serious, and said, “I have no idea.” I pressed him and he wouldn’t bite. One thing he did acknowledge is that justice is not simply the enforcement of whatever laws exist.

I took the opportunity to ask the judge how many laws there are. He said he had no clue – and that nobody knows. Yet ignorance of the law is not a defense, even as the law is selectively applied and enforced by the government to suit its own purposes. After all we reportedly commit an average of three felonies per day. Warns retired law professor John Baker: “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime. That is not an exaggeration.”

Meanwhile, under the Constitution the government has grown via tumoresque bureaucratic proliferation. We’re talking literally thousands of federal and state agencies employing millions of “servants” whose salaries are paid by those who have no choice to opt out of said services.

People’s abysmal opinion of politicians paired with low voter turnout signify something positive. People instinctively sense that the system is a sham.

Truth is always progress.

Speak the Truth

For those who care about liberty, the Constitution is deserving of contempt rather than respect. It has served to consolidate and centralize government power by its very design.

Reality is indisputable: The Constitution either authorized the current regime which controls literally every aspect of our lives, or it was utterly powerless to prevent it. Either way it’s “just a goddamned piece of paper,” as George Bush reportedly said. At last, something we can agree on.


Check out my free book on politics, decentralization and living a freer life. This article is published under the CC0 public domain license. Use it for any purpose you wish. Thanks for reading.