“It may prove that no society is capable of making a permanent constitution, or even permanent laws.” Thomas Jefferson wrote: A September 1789 letter to James Madison: “The earth always belongs to the living generation. … All constitutions, all laws, naturally expire in nineteen years; if they are enforced beyond that, it is an act of compulsion, and not a right…”
Jefferson continued: “Factions take control of the councils; bribery corrupts them; personal interests turn them away from the general interest of the constituents; and other impediments arise, until to all practical men laws bound by time prove far easier to handle than those requiring repeal.”
Government by popular consent has been replaced by government by coercion.
Nearly a century later, the great American anarchist Lysander Spooner Claimed The Constitution is binding only on those who have given their specific, express consent.
“No man can delegate arbitrary dominion over a third person, because this would imply to the first man a right not only to enslave the third, but also to dispose of him as the slave of still other men,” Spooner wrote in 1882. “Any contract to do this is necessarily criminal. … To call such a contract a ‘constitution’ does not make it less criminal, nor does it enhance its validity.”
Until 1913, our government was small and limited. Federal spending was a small percentage of GDP. The administrative state as we know it did not exist.
Then came the Progressive Era, which transformed government: Congress created the Federal Reserve System; an amendment to the Constitution allowing for an income tax was ratified; and senators were elected by direct popular vote rather than by state legislatures.
Governments could expand in size and scope by printing money or raising taxes or both (previously they were constrained by being unable to do either), and direct election of senators nationalized senator elections, centralizing power.
Government spending increased, inflation rose, the real value of money decreased, the regulatory state expanded, and the administrative state expanded, resulting in less freedom, less innovation, and less wealth.
Currently, in our ideologically divided society, the lack of decentralized governance has led to all decisions being nationalized and centralized through an authoritarian process: the administrative state promulgates rules, which are then enforced by a surveillance state that is essentially unchecked.
For example, when Congress proves unable to reach agreement on immigration, the only way to satisfy the desire to “get things done” is to issue an executive order — an admission of inaction, incompetence, and dysfunction.
And the Supreme Court, which Alexander Hamilton once promised would be the “least dangerous branch,” has become perhaps the most dangerous.
The current crisis of government legitimacy and disregard for the Constitution may stem from the fact that our government is no longer a government “of the people, by the people, for the people.” Limited government is indeed gone. Today, lawmakers agree to little more than borrowing and spending exorbitant amounts of money to bolster corrupt, cronyistic corporate cartels. In other words, it is a government of the few, by the few, for the few.
Maybe Jefferson and Spooner were right. Our government has gained enormous power but lost legitimacy. Why should people today feel bound by contracts inherited from their predecessors without their consent?
In the past, we had a small, limited government that accounted for a small percentage of GDP and had no power to influence money or monetary policy. Lack of tax revenue and a limited money supply limited the size of government and restricted its role in society. Therefore, almost all decisions made by the people were spontaneous and expressed through economic and social activities with limited federal government intervention.
We now have a Leviathan. Government debt exceeds the value of economic activity. Unfunded liabilities burden future generations, making the debt burden even greater. The Federal Reserve has amassed a balance sheet in the trillions of dollars. The tax code is now codified in over 70,000 pages of statutory codes, regulations, and revenue rulings. The Federal Register, which records government activities, is also over 70,000 pages long. Most Americans have no idea what is written in them.
Who believes that all this was done with the consent of the people? Does anyone believe that this is still a government of the people, by the people, and for the people?
Government by popular consent has been replaced by government by coercion.
Neither party now supports a limited and decentralized government. Both parties support broad and ever-expanding presidential powers. Republicans, once the party of the rule of law, now argue that the president should not be bound by the rule of law. Legislators support granting unlimited executive power to one person, and the right to act without immunity and criminal responsibility, the same privileges to themselves, the military, and the police.
The great thing about a limited-term contract is that the parties are free to decide under what conditions they wish to renew the contract. This decision should be given to “we the people.” Only then can we have a constitution that is by agreement, not by coercion.
