Liberty Commentary

Constitutional Anarchy

by Timothy Baldwin

Recently, Senator Jim Shockley published an article on his reasons for not supporting Montana State Senate Bill 114 – Sheriff’s First Bill. His response brought to my mind the content of  this article.

Constitutions are supposed to be formed—as well as abolished, altered or amended—based upon natural law principles, human experience and  foresight. The United States’ history confirms this reality. The  Constitution of the United States of America (“USC”) was in large part  proposed and ratified because the States supposedly could not work  together efficiently and in harmony enough for the union to effectively work. Some of the proponents of the USC (known as Federalists) were little concerned that the newly-constructed federal government would
ever outweigh the States in power and function. On the other hand, opponents to the USC (known as Anti-Federalists) insistently and adamantly argued that the federal government would—eventually—outweigh the States in power, causing a harmful scenario for liberty. In either regard, however, the USC’s enactment was deemed a political response to a societal condition.

However, since 1870, many legal theorists propose that the USC is a living constitution that can change in meaning and application over time; that power and
authority is relative to the circumstances of the day; that enumerated
powers must evolve with condition of society; and that the arduous labor
of constitutional amendments need not be utilized to correct flaws in
the system. Today, it is a common notion that many lay persons hold and
many politicians claim is a political truth.

Of course, these same persons use this theory to empower the federal
government to the exclusion of State authority; or at least, to
passively allow the federal government to perform whatever it claims the
power to do. Never do they use the same theory to place power back into
the hands of the States in compliance with the original meaning of the
USC. Conveniently, those who hold these political and constitutional
positions are strict constructionists when it comes to limiting the States but are evolutionary constructionists when it comes to empowering the federal government.

Interestingly enough, the USC was originally proposed and ratified
under this stigma: those who were afraid that the federal government’s
power would become too great were not to be taken too seriously and to
be treated in almost a comical fashion. Anti-Federalists’ warnings
regarding the federal system were subservient to Federalists’
priorities. Consider what U.S. Supreme Court Justice, Joseph Story, said
in 1833 concerning the positions of some of the Anti-Federalists on
this point:

“One cannot but feel, at the present time, an inclination
to smile at the guarded caution of these expressions, and the
hesitating avowal of the importance of the power. It affords, perhaps,
one of the most striking proofs, how much the growth and prosperity of the country have outstripped the most sanguine anticipations of our most enlightened patriots.”[1]

By implication of Story’s admission, the USC was not formed as much
upon human nature, the natural degradation of constitutions and the
hazards of federal power but more upon the potentiality of a powerful
federal government to facilitate ample amounts of wealth. Since that
time, Story’s sarcasm equates more to irony now that the results of the
USC have become essentially what the Anti-Federalists predicted. Still,
even the Federalists held the USC to be a constitution of fixed meaning;
not evolutionary or living. At least they stated with character and
conviction what political maxims they believed to be true and did not
hide behind metamorphosis ideology.

For one holding to the living constitution theory, how would he
propose that the States regain the power they have lost over the past
200 years? How would he propose that the balance and limitations of
government power be restored? Would these theorists allow, as they
concede with Congress, the States to pass legislation they deem is in
opposition to the USC given the political plight of the States? Would
they allow the same pecuniary, discretionary and arbitrary power to rule
as they concede the federal government has by virtue of whatever the
U.S. Supreme Court declares? And if one would not concede that the
federal government is so entitled to act, what is he to make of the
union that has essentially permitted the federal government to act carte
blanche? What would he think of the 1500-1800 A.D. political
philosophers’ maxims that usurping power must be resisted by equal or
greater opposing power?–that the peace, happiness and well-being of the
State is in actuality the supreme law of the land?

If the living constitutionalist’s theory is correct, then the meaning
and application of the USC cannot be used to bind the people and the
States to a system damaging to their freedom when the federal government
is not held to the same standard. Would one agree with Joseph
Story?–that the federal government would become too powerful over the
States is laughable?  Upon the living constitutionalist’s own
prescription, the States must use the same living means to do as the 14th
amendment requires: that no privilege or immunity be denied the people
of the States, which necessarily means ensuring that the federal
government not trample upon the rights of the States under the tenth
amendment. However, the reality is, living constitutionalists would only
admit such an evolving power to the federal government, which reveals
their political hypocrisy.

The result from this constitutional absurdity is constitutional
anarchy. The federal system does not operate under political maxims; it
operates upon political whim. What was supposedly the original meaning
of the USC is deemed outdated and impractical. Circumstances are deemed
to control the meaning of the USC. Consequently, new meanings and modern
circumstances determine the extent of the federal government’s power.
Yet, the “true meaning” of the USC is strictly cited as a manner of
restricting the States, all in the name of “adhering to the USC”. The
constitutional standard is duplicity and is driven by whatever outcome a
politician desires, depending on his ideology or worse, his own
interest. But somehow we are supposed to believe that politicians
practicing such beliefs actually understand what freedom is and care
about actively preserving it.

It thus becomes very convenient (or really, surreptitious) for those
in political positions to shirk their duty by referring to the USC’s
original meaning not to do what they are supposed to and referring to
the modern-living constitution to do what they are not supposed to. It
is no wonder that the only direction that seems to gain any momentum in
the United States of America is the unstoppable slide down the muddy
slopes of tyranny and oppression—the claim of loving freedom and
constitutional government notwithstanding.

[1] Joseph Story, Commentaries on the Constitution of the United States of America, Vol. 3 of 3, (Boston, MA, Hilliard, Gray and Co., 1833), 22.