Jettison the Constitution?
By Staff News & Analysis - January 03, 2013

Let's Give Up on the Constitution … As the nation teeters at the edge of fiscal chaos, observers are reaching the conclusion that the American system of government is broken. But almost no one blames the culprit: our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions … Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago. – New York Times

Dominant Social Theme: We need a new approach and strong leaders.

Free-Market Analysis: Our trends for 2013 featured the advance of German-style National Socialism in the US, and this probably qualifies along those lines. The Times article unapologetically makes the argument for doing away with the US Constitution but what is to be substituted and how it is to work is not made clear.

The argument itself is an obvious one, especially as hardly a shred of the so-called Constitution remains, in any case. The Supreme Court routinely defies it, Congress ignores it and the executive branch simply steps around it as necessary.

One can even make the argument that the Constitution was a big step backward from Articles of Confederation that somehow were seen as not "strong enough" for a growing nation. Nonetheless, the Constitution – an entirely illegitimate document within the context of its creation – was launched out of a legislative conference that gathered under strict orders NOT to draft a new document.

As usual, Alexander Hamilton – a man who believed in a strong federal state – was one of the biggest backers of the document, which was purposefully written in a vague way apparently and was in many ways authoritarian in scope simply because it left so much not clarified. The final document created such an uproar that a "Bill of Rights" was finally attached to strengthen it.

The author of this OpEd in the Times has a meaningful point when considered from this vantage point. Louis Michael Seidman is a professor of constitutional law and he has studied the US's dysfunctional Constitution and simply advises that we scrap the document. Here's some more from the article:

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation's fate?

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

This is what we meant when we wrote above that the Constitution was created via an illegitimate process. What is usually even less discussed than the illegitimacy of the Constitution is WHY those who created this document acted the way they did. Some would submit that the Constitution was simply a way for European banking powers to begin the process of re-establishing control over "these States."

Thomas Jefferson was most suspicious of the Constitution and basically wanted nothing to do with it. He didn't participate in the initial drafting and when he was president, admitted he went beyond its bounds with the Louisiana Purchase.

But where the author goes wrong, in our humble view, is providing us with the rationale for ignoring the Constitution. His point is that the Constitution is making it difficult to govern effectively.

Our point would be that this is an entirely disingenuous argument.

The author might be a constitutional scholar but so is the US statist president, Barack Obama. We would venture a guess that the author's politics are of the leveling kind. The article accepts the basic premise of the modern political and economic machinery and simply seeks to rationalize its effectiveness.

In other words, the author wants to make what is operational now more effective. There is nothing in the article that we can find that voices any great concern over the US military-industrial complex, Federal Reserve fiat money printing or the gradual disintegration of states' rights and rise of the penal-industrial complex and accompanying domestic Intel/fascism.

This suggestion to do away with the Constitution, then, is just one more attack of many that seeks to further liberate Leviathan. At least when authoritarian measures are put into play currently there is the prospect that some constitutional right or obligation can diminish the worst of what is being implemented. Without a recognized constitution even that small possibility would be lost.

One can also make the argument that the US Constitution – as bad as it has been in practice – has been the target of what we call the power elite since its inception. Having provided an impetus for its creation, in our view, the power elite that wants to run the world set about destroying it soon thereafter.

The main problem with the US Constitution and its surrounding language is that it is a statement recognizing the rights of the individual. It provides the powerful statement that those rights are derived from the almighty and are therefore inviolable.

This is a truly intolerable perspective from the standpoint of the powers-that-be that operate via mercantilism and need an entirely unchecked government to be most effective. The modern idea is that everyone's life is subject to the permission of Leviathan and that we all operate under its direction and care.

This is the heart of what is left of a sometimes noble but often ambiguous and even destructive document. It is the part that the elites could not initially excise. It has taken them two centuries to get to a place where a university sophist can suggest doing away with the US Constitution using an entirely utilitarian argument.

The main strength of the Constitution and the Declaration of Independence is that a Creator grants rights to individuals. This is made clear in the literature, a point that Seidman neglects to make. Actually, he probably does not so much neglect it as avoid it.

These people, these soulless sophists who are determined to support the creation of a global order, will do anything to deny the idea of individual rights. Seidman comes right and says it, as a matter of fact. He states that what makes the US great is the perception among its people that it is "one nation."

In fact, what made the US great was the inherent individualism of its settlers and the idea that an individual citizen could do great things on his or her own. This is always the case when there is an efflorescence of freedom and prosperity. The proximate cause is individual "human action."

After Thoughts

You will find none of these considerations in Seidman's suggestions. He has excised the core of what made the US great and wishes to substitute for it the dead letters of "habit" and nationalism.