Six years ago I wrote my first book,
Unlawful Government: Preserving America In A Post-Constitutional Age. I didn't write it for the money, which is fortunate because I would have descended into swift penury if I had. It does bring me pride, though, that I engaged in the serious dialogue America needs long before America saw fit to do so. At various points in the past few years I have re-published the introduction of that book to try to draw people's attention to the enormity of the problem facing us and the impossibility of solving that problem within mainstream channels. I will do so here again, and I encourage you all to start thinking outside the box.
INTRODUCTION
My parents taught me reverence for America, a reverence that I have spent my life exploring beyond the emotional realm and into the intellectual one. At the beginning I had only the vague notion that America was special – somehow different from earlier civilizations – and that I was privileged to have been born here. As years went by I studied our history and our system of law in order to grasp precisely what made America unique, a process that often made me wish I could travel back in time to witness the birth of our experiment in human liberty. Only amazing events could bring this most revolutionary principle into practice: that government’s sole mission is to preserve our rights, and that we may abolish government when it expands its reach beyond this modest role.
This is not so much a political philosophy as it is a
moral philosophy, one that refuses to repeal the distinctions between right and wrong in the name of “good governance.” Other political philosophies justify coercion as a means to implement one grand vision or another, to bring about a “fair” society, or even to remake human nature itself. Such philosophies are often portrayed as more idealistic, innovative, or modern than our own, but they in truth represent an ancient scheme that the Founders wisely rejected. As the Founders rightly understood, such “creative” uses of coercive power not only constitute a moral affront, but they also smother the creativity that flourishes when the individual is free to pursue his vision of the good life, even though such vision may differ from that of his peers or of his supposed betters. Respect for the individual and for his unique faculty of reason lies at the heart of America’s dynamism and prosperity. America proved to the world what wonders man can achieve when not enslaved to other men.
While I was progressing through school and gaining a fuller appreciation for the genius and virtue behind our system, I also came to notice that today’s federal government differs starkly from the one described in the supreme law of our land, which is of course the Constitution. This began as little more than a puzzle for me to unravel. How does the federal government exercise so many powers, when the Constitution grants it so few? If the First Amendment says that Congress “shall make no law” restricting freedom of speech, how does Congress restrict certain language over the airwaves? Why does Congress no longer declare war? Why was a constitutional amendment necessary to enact alcohol prohibition in the early twentieth century, whereas today the federal government conducts a “war on drugs” without a similar enabling amendment? If the Constitution truly grants sweeping powers to the federal government, then why did such powers go ignored for the majority of our history?
These were only some of the questions I felt compelled to ask, and the more I thought about them, the more troubled I became. The Constitution dedicates the power of amendment to the people through our state and federal representatives, yet a panel of nine individuals on the Supreme Court had wrought seismic constitutional changes over the course of the twentieth century. To be sure, the Supreme Court wields the power of “judicial review,” whereby the Court nullifies a governmental action that conflicts with the Constitution so that the latter may prevail. Yet most of the modern landmark decisions made no attempt whatsoever to uphold the constitutional design; rather, these decisions
altered the design so as to enshrine a personal concept of justice held by the individual members of the Court. In ruling after ruling the Court went about demolishing generations of jurisprudence and bypassing the amendment process, the only lawful method for adapting the Constitution to modern conditions.
Apart from this renegade reordering of the Constitution, the very nature of the changes worried me. These were no mere refinements to the government’s mission of protecting our rights; instead, the changes bespoke a rejection of the Founders’ vision of limited government and signaled the embrace of the very philosophy of vigorous governmental action that the Founders had labored to defeat.
I shared my concerns with other students in law school and, later on, with fellow members of the legal profession. What I encountered ranged from indifference to hostility. During such conversations my peers revealed a deep disregard for the constitutional design and for the American citizenry itself.
First and foremost, they told me that the Constitution reflected a bygone era whose philosophy carried no weight in modern America. Government must have broad powers to “run” society now, so my scruples about constitutional niceties amounted to a naïve and misplaced obsession. Of course this response overlooked that the Founders’ ideals endured the exact same criticism over two hundred years ago: the very notion that government should limit itself to core protective functions struck the Founders’ contemporaries as naïve, laughable, and unworkable as well. In point of fact, the Founders rejected eons of their ancestors’ apologetics and rationalizations for open-ended governmental power. On this score my friends’ retort was both historically ignorant and unoriginal. Even worse, my friends displayed no concern for the moral underpinnings of limited government, mainly that coercive power must be used only in the defense of life, liberty, and property, not as a tool for compelling our fellow man to conform to a “plan” dreamed up by the cognoscenti.
Assuming that the argument in favor of stronger government conceivably had merit, it did not address the underlying problem that such changes had occurred without benefit of a constitutional amendment. Weren’t my friends troubled that these changes, however desirable or important they might seem, had been enacted outside the procedures ordained by the supreme law of the land? To this my friends universally responded that the amendment process itself was outworn and cumbersome, that they did not care what a group of dead men said about the Constitution long ago, and that all of the “necessary” changes would never have occurred if the elected representatives had participated in the process. Having uncritically absorbed their modern legal education, my friends refused to acknowledge that “judicial review” means only the uncompromising application of the Constitution to novel circumstances – an approach now derided as “original intent” and deemed worthy of scorn. Today’s lawyers have taken for granted their professors’ sentiment that judicial review amounts to something much more sweeping and audacious, namely the power to decree society’s changing standards and to smuggle those changes into the Constitution without regard for the amendment process. Such is the unavoidable result of ignoring original intent, for any other mode of interpretation is not interpretation at all, but rather imputation and transformation.
Even if society really wanted the constitutional changes that the Supreme Court has conjured up, wouldn’t society gladly have approved of constitutional amendments bringing about those same changes? Where do self-proclaimed visionaries obtain the right to disregard the Constitution merely because they perceive amendments as “too slow”? Isn’t the Constitution meant to be difficult to amend, lest it be abused? The dirty little secret is that the legal class and its aspiring members care little for society’s preferences, and instead revel in forcing their own preferences onto society.
Such realizations led me to question more seriously the ongoing vitality of our founding principles. Either the Constitution is binding or it is not. The prevailing view I was running up against held that the Constitution as written and intended is not binding, and further that Americans should not be trusted to govern themselves, which is an astounding stance for persons sworn to uphold the Constitution and the rule of law to take.
When I would press my points, I finally arrived at my friends’ last line of defense: even if many modern federal programs are technically unconstitutional, Americans have grown accustomed, and it would cause turmoil to attempt to undo such programs at this late date. In other words, my friends were invoking “the people” now that the constitutional changes had frozen into place, but not when those changes had actually been imposed (when the people’s input was ignored). This self-serving outlook, which is espoused almost universally by America’s lawyers, judges, and politicians, and which is constantly reinforced in their daily ministrations, has brought about the result that the Constitution is indeed no longer the “supreme law of the land” but rather a set of aspirations to be followed only when the powerful find it convenient. The federal government acknowledges no authority higher than itself, since it can expand or contract the Constitution’s meaning as it sees fit – an outright repudiation of the rule of law, which binds both government and governed alike. I happened upon a Supreme Court decision from two generations ago that, in a rare moment of candor, admitted as much:
“[The Constitution] must be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of the Government that is. . . . Subtle shifts take place in the centers of real power that do not show on the face of the Constitution.”
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653 (1952) (Jackson, J., concurring).
I could not believe that my fellow lawyers saw no wrong in this. Not one of them, “liberal” or “conservative,” shared the Founders’ deep mistrust of political power or the Founders’ equally deep devotion to the rule of law. Whereas the Founders considered government a necessary evil at best and an intolerable one at worst, modern lawyers see government as absolutely essential, so much so that simply voicing a contrary viewpoint invites their disdain. Lawyers such as Patrick Henry, Thomas Jefferson, and John Adams risked their lives, their fortunes, and their sacred honor to sever their ties with an overbearing government. Today’s inheritors of the legal profession do little to honor that legacy, and much to disgrace it.
Although it is difficult to figure out how such a regressive mindset seized control of the legal community, it bears an unmistakable relation to the fact that most lawyers no longer possess knowledge of American history or of the history of the law we inherited from England. Law students are certainly not required to obtain such knowledge anymore, and they tend to view law school as a mere “trade school” from which to glean whatever minimum information necessary to earn a living. Very few law students take the time to learn about the Constitution or its roots; those who bother to study the Constitution at all focus on judicial decisions of the past two or three generations, to the virtual exclusion of any prior decisions or other authorities such as the Federalist Papers or the constitutional ratification debates. Modern lawyers thus drift unanchored to any reverence for the very system in which they practice, so it comes as no surprise that they display adolescent, destructive zeal to impose their vision of the ideal society by means of the government’s coercive machinery.
It has become painfully obvious that not just lawyers, but also large swaths of people in modern America view themselves as entitled to employ unchecked political power for what they deem noble objectives. If elections or constitutional amendments cannot bring about the “right” result, then these self-styled “idealists” presume the right to step in and supply it by alternative, unconstitutional, means. Of course such persons have always existed in America, but today they have overrun the safeguards that historically shielded us from their undue influence. Their fanatic obsession with employing government power to achieve “justice” at the expense of the rule of law has steadily chiseled away at the edifice of our Founders’ legacy, and transformed the once-private and sacred realms of our lives into the public and vulgar.
Perversely enough, this assault has taken place in the very name of fostering individual rights and equal protection of the law. Though these goals broker no serious dissent, the persons who most vocally claim to promote them also promote the inexorable centralization of authority in the federal government, thereby enlarging the reach of the political means for resolving all manner of disputes. As the political displaces the personal, the coercive displaces the voluntary, pushing us deeper into a barbarism whereby citizens co-exist by means of mutual compulsion. No longer may citizens decide whether and how to interact with each other as free men and women, but rather we are forced to arrange our most intimate affairs according to the whims of transient electoral (and judicial) majorities. Compulsion has escaped from its narrow legitimate purpose of defending liberty, and it now roams free to thwart liberty at every turn. As a natural result, civil society has all but crumbled.
Now that this process has almost completed itself, and the humble government described in our Great Charter no longer exists, the “idealists” are re-focusing their efforts on a new stage: the world at large. In the name of “democracy” and “human rights,” our self-appointed enlightened classes endeavor to export their handiwork abroad in order to erect supra-national political machinery and to weaken or abolish the sovereignty of the nation-state. Their sense of urgency is quickened by the fact that technology has enabled individuals to communicate and interact in a global environment blissfully free of centralized oversight. Nothing frustrates the idealist more than people pursuing their own happiness, and the crusade to assert global control will doubtless proceed under the guise of protecting the downtrodden and the disadvantaged, just as it did within the United States itself. Even now, despite the absence of a reigning global authority, proposals exist to harmonize governmental policies among various nations in order to achieve just this result. Nations who choose not to cooperate are targeted for censure, sanction, or outright military conquest. This is an ominous trend, for a worldwide political sovereignty, whether “democratic” or otherwise, would be an unparalleled nightmare. Our freedom relies not on what governments can do, but rather on what governments cannot do. Without other sovereignties or competing sources of legitimate authority, a global government would enjoy unilateral, unbridled sway over all our lives, leaving us no hope of expatriation or escape.
We are not powerless to stop this. All governments rest on the perception of legitimacy, which is to say that the only real authority government wields is that which we ourselves perceive as appropriate. If enough of us come to understand that the government is acting outside its permissible boundaries, then the government cannot hope to maintain its unlawful control. Truth be told, the government is accelerating its domestic and foreign activities precisely because it already feels its legitimacy slipping away. Ours is an age of decentralization and individual empowerment, and people need government less and less. This has provoked government into desperately attempting to prove not only its legitimacy, but its absolute necessity to protect us from all dangers, real or imagined. Government apologists insist that the Founders’ vision is hopelessly outdated for the modern era, but they could not be more mistaken: the Founders’ vision of decentralized government is far better suited to the modern world than the centralized, unresponsive, and inflexible Leviathan currently in existence. The worshippers of the mega-state are the true barnacles of a bygone era. We must drop the veil from our eyes and acknowledge that this government has outrun both its mandate and its usefulness.
I charge that the federal government has exceeded its lawful boundaries and that we as Americans are no longer bound to obey it. This government, which was designed to protect life, liberty and the pursuit of happiness, has become destructive of these very ends. Although I once struggled to reconcile this conclusion with my patriotism, I now understand that my patriotism demands nothing less. Our Founders never contemplated, and no duly considered amendment ever authorized, that the federal government would extend its reach so deeply into our lives or so far across the face of the globe. I am not made an outlaw by refusing to embrace such outlaw behavior. To sit idly by while the federal government routinely desecrates the Constitution and imperils our lives and our posterity would itself be criminal, and it would require me to deny my adherence to the rule of law; my lawyer’s oath to uphold the Constitution; my respect for the truth; and my very nature as a man.
To the claim that most Americans disagree and do not question the government’s legitimate authority, I respond that while my fellow Americans are free to surrender their rights, they are not free to surrender mine. I and others like me do not seek to impose upon others, but rather to resist illegal imposition upon us. Nothing demands that we endure the incitement of foreign enemies, the refusal to secure our borders, the redistribution of our wealth, the monitoring of our daily activities, the reordering of our private and professional relationships, or the debasement of our children’s minds. We have no duty to weather these plagues, and we will rid ourselves of them as soon as we refuse to bend knee to the few who claim the right to rule us.
Elections will not achieve this, for elections leave the deviant political apparatus intact. The fact that questions of constitutional first principle – which should remain beyond all political debate – are up for grabs every election cycle reveals the self-defeating nature of any possible electoral outcome. The two major parties differ solely on how to employ their illicit power. No government voluntarily surrenders such power, and there is no reason to think that this one ever will.
Instead of partaking in the illegal and immoral sham of today’s mainstream politics, it is time for Americans to regard the federal government as the unlawful enterprise that it has truly degenerated into. To break the government’s unlawful grip, only withdrawal from the government’s pattern of “legitimized” violence is necessary: withdrawal of our participation and our recognition. Do not vote in federal elections or work for the federal government. Get involved in your local community. Assume personal responsibility for rearing and protecting your children. Reject that which reaches you by coercive transfer from the pockets of others, unless in recompense for a wrong done to you by the payer. Lower your tax liability as far as possible. Feel no shame in skirting federal regulations while conducting your business or handling your finances in the most sensible way. Learn about America’s true history. Share your thoughts with others. Do not shy from the truth, no matter how unpleasant. And remember that while the people who follow such counsel may be few, freedom has always enjoyed far more beneficiaries than advocates.
I love America. I love my ancestors who founded her and built her up from nothing. I love the millions of people who keep her prospering today. I love her giant cities and her small towns. I love her fierce sense of independence, and her equally fierce conviction that good can triumph in this world. I love my memories of boyhood in America, knowing in my heart that anything was possible and that the future was boundless. And this love propels me to write, for Americans can continue to prosper if we look into our hearts and heed what we find there. America existed before the federal government, and America can exist after the federal government, but America can no longer exist with the federal government.
