No Treason: The Constitution of No Authority (1870)
readtext.org
readtext.org
The philosophy of the U.S. Constitution is discussed better in the Federalist Papers. It's a design document (unlike the Declaration of Independence), put together by people who wanted a system that would work. They didn't want a king (well, Hamilton did); they'd just gotten rid of one. They didn't want a loose association requiring unanimous consent like the Articles of Confederation (or, later, the United Nations); they'd tried that. They didn't want anarchy or dictatorship of the majority; the French Revolution wasn't going well. They didn't want it to be too weak, allowing Britain to come back in and reconquer. (Britain tried in 1812. The British Army got far enough to capture and burn the Capitol before they were pushed back.) Given those design constraints, the authors of the Constitution came up with something rather good.
As for anarchy: see "Failed State". You don't want to live there.
And the Federalist Papers are a rather dry rehash of the Divine Right of Kings, dressed up in the language of protecting individual rights in order to dupe a newly freed people into accepting a new, better-disguised oligarchy. In my opinion, the philosophy of the U.S. Constitution is much better discussed in Spooner's "No Treason".
As for "Failed State", see every government in the history of mankind. Further note the parent's blatant misunderstanding of anarchy by labeling it a state. Anarchy is alive and well today, and always will be so long as free people organize themselves.
What's the alternative, and how would you implement it? What would the upsides to your plan be exactly? What would be the downsides (including negative unintended consequences), and how would you address them? Would the upsides outweigh the downsides? If not, you've answered your own question. But if so, PLEASE tell humanity about it because we've been trying to figure this stuff out for millennia!
Noam Chomsky is among the most famous anarchists that is currently writing on the subject, so his writing is likely a good introduction. David Graeber is another. Both of those folks are coming at it from the left; others come to anarchism or minarchism from the right, which is sometimes called libertarian (with some caveats, as the word "libertarian" has been overloaded to the point of being almost meaningless; I know people who call themselves "libertarian" that support Trump's border wall, or gods' sake!) or voluntarist. Though, left/right, in general, gets a little sketchy as a way to describe a political belief system as the power of the state envisioned gets smaller and more directly accountable to citizens.
Pure majoritarianism doesn't work, you know. It leads to grossly immoral systems which destroy the rights of minorities. There needs to be larger governments, governments not ruled by the local majority, which can step in to curb the abuses an unchecked majoritarian government would otherwise get away with.
From Majoritarianism [1], quoting anarchist anthropologist David Graeber:
> "Majority democracy, we might say, can only emerge when two factors coincide: 1. a feeling that people should have equal say in making group decisions, and 2. a coercive apparatus capable of enforcing those decisions." Graeber argues that those two factors almost never meet: "Where egalitarian societies exist, it is also usually considered wrong to impose systematic coercion. Where a machinery of coercion did exist, it did not even occur to those wielding it that they were enforcing any sort of popular will."
Changing the size of government doesn't fix any problem created by majoritarianism. A larger government only makes it so that when the majority gets it wrong, they get it wrong everywhere at once and there is nowhere left to run.
That's how it goes. You can't expect the US Congress to do the right thing. They pass the Fugitive Slave Act, the Defense of Marriage Act (signed by B. Clinton), laws against abortion, laws favoring banks and coal companies at the expense of the poor and workers, etc. Read Roe v. Wade. The court wanted to do something that Congress wouldn't but they had no justification for doing it, so they made one up. It's utterly contrived. Striking down DOMA was only slightly less contrived (and 5-4 instead of 7-2), and only because modern courts are getting so much better at contriving things due to all the practice.
But the same Court gave us Dred Scott and Buck v. Bell and Bush v. Gore. The same Office of the President gave us Hoover and Nixon and Bush Jr.
Gay couples are only happy today because Justice Kennedy is the swing vote, but Kennedy was appointed by Reagan. If Reagan appointed somebody else then DOMA is upheld and any state can ban same sex marriage. So we have a federal government that will pass DOMA with a large bipartisan super-majority but strike it down by the narrowest of margins, when we could have one that much more clearly has no authority to be involved in the matter at all.
Countries need a strong central government to overrule local governments ruled by prejudice. To think otherwise is historically illiterate.
To play devil's advocate on this particular point, it could be argued that the place of your birth is by definition your home to which you're entitled a natural right.
The underlying assumption of "natural rights" is, after all, that if some humans were somehow born and grew up in a context where no society -- and especially no modern Western society -- was inculcating them from birth with its code of ethics or enforcing it on them, those humans would somehow spontaneously derive the core values of the modern Western code of ethics from self-evident first principles and then automatically enforce that code on themselves without any external incentive to do so.
And that is pure fantasy, and is the point in these HN threads where I often start quoting Thomas Hobbes.
The U.S. Constitution was the culmination of centuries of thinking about political power and is remarkable for its distrust of absolute power. Unfortunately, that distrust has been slowly eroded over the last nearly two-and-a-half centuries, beginning with Marbury v. Madison and currently at such a state that presidents enter into war without an act of Congress, judges make law from the bench, and Congress dictates to the executive which cabinet positions must be filled.
It was a great experiment, but actually already a failed one in the sense of the original debate back in the 1770s and '80s.
Ah yes. Tell me again how all the people involved in drafting the Constitution came to universal perfect agreement in every aspect and detail of what the right way to set up a government was and how the resulting Constitution should be read and interpreted for 100% of situations, to such a high degree that during their lifetimes there were absolutely no controversies about how the Constitution worked.
Hint: the fact that Marbury happened shows what a complete clusterfuck of disagreement and disarray the Constitutional Convention was. Also, Marbury was good law.
And yes, there are older concepts of natural rights, but the one always espoused by people who advocate for the perfect-unanimous-agreement myth of the Constitution is the one used by, well, the people who drafted the Constitution, who'd been busy reading the theories of John Locke on the subject.
Hobbes was wrong on one count: Human life in a state of nature isn't nasty, brutish, short, or any of the other War Of All Against All nonsense he proposed unless there's been a serious disaster in the recent history, such as a plague or famine or invasion. In short, humans don't live like Mad Max or Walking Dead or Night Of The Living Dead unless their actual society was just destroyed and they haven't built a new one yet.
In a state of nature, humans live as hunter-gatherers, usually, which is not terribly bad most of the time. However, hunter-gatherer societies still have rules and ways to enforce those rules and hierarchies which are not fair by modern standards of fairness. Strict gender roles are usually enforced, for example.
My point is, humans naturally have a government of some kind, and definitely have rules which you can't opt out of if you expect to keep living with that group of humans. And it is entirely correct that humans raised in that society won't spontaneously recapitulate Locke and Jefferson. But they will have something, and they won't look kindly on people who expect to live outside of their rules and continue to interact with them.
And they certainly won't agree on which "rights" humans "naturally" have. Not even the right to live: A number of ancient societies practiced infanticide, for example.
I can think of two basic reasons for the existence of government: 1) The idealistic (naive?) view of government is that it exists because some problems in society are best solved by coercion rather than cooperation. Businesses and charities, when they solve problems, lessen the need for government.
2) Bastiat's more cynical view of government was that it "is that great fiction by which everyone tries to live at the expense of everyone else." Moral instruction and wealth, evenly distributed, would seem to lessen the need for this type of government.
There are plenty of alternatives to living under a monopoly of violence (a state). Anarchy means "no ruler". Thus, by definition it doesn't tell people how to live. There is no central "plan", dictated from on high, though that doesn't mean there are no rules. The premise is that individuals should be permitted to organize themselves, to experiment and make room for diverse forms of society. Another term for this is polycentric law.
How to implement? A great start would be to make taxation voluntary by cutting them from the top down. Allow people to not pay for the War on Drugs, the War on Terror, government compulsory education, corporate welfare, or the numerous other unethical, irrational failed policies forced upon the population. The state is not needed for society to function -- in fact, I'd argue it's a parasitic hindrance that's convinced its host of its legitimacy and necessity.
Since anarchist philosophy can't exactly be boiled down into a single HN comment, I'd suggest reading Kevin Carson, David Graeber, Stefan Molyneaux, Noam Chomsky, Proudhon, Bakunin, and other well known anarchists if you're serious about learning more.
>>> What's the alternative, and how would you implement it?
Great question. Some here have already mentioned anarchism, which would be great if we could get there- but how could that even happen in the current regime? Most people are not philosophers, and have a hard time imagining things which don't exist here on our little ball of dirt. There is, however, a simple solution which should please anarchists and statists alike: virtual citizenship.
Virtual citizenships are the future. As you said yourself, in the current system one must change geographical location to change states, but why should this be so? We are already seeing the beginnings of this with things like Bulgaria's e-citizenship. Don't like the local religious-influenced government? Switch to another. Governments can work out treaties between themselves to establish a baseline of necessities and cost sharing. Changing your government could be simple and easy, which would force governments to compete for citizens. I think most of us realize the benefits of competition vs monopoly.
It could become the case that competition between governments becomes so fierce that governments start offering large incentives to join them- such as bonuses or minimum income guarantees.
Anyway, that would be my modest proposal for the way forward. This post is the result of thoughtful reflection and is not intended to be trolling in any way. I would appreciate criticisms and responses to my argument. Thank you for reading.
Falling back on a constitutional argument (at least, one that simply says "everyone should follow the Constitution!") is somewhat lazy in response to a specific refutation of the Constitution.
Nations are more than the sum of their citizen parts. They live beyond the scope of any one human. Thousands if not millions are born and die every day. Law is more long lived by necessity.
Framework documents like the constitution are gifts from our ancestors -- any system sting enough to endure and flexible enough to change is a good thing. If the 20th century taught anything, it's that nation building is exceptionally difficult. The US constitution has been the core framework for a robust nation for centuries.
No, it governs (or claims to govern) everybody within the territory of the United States. It says it is the supreme law of the land. Its provisions defining the structure of the Federal government also define what the Federal government is allowed to do to govern the people.
George Mason was what we would call in modern terms, the sponsor of the bill in the 1st congress. He was the first congressman to hold the seat for the 1st district of Virginia. His bill was eventually split into 12 amendments. 11 passed the house, and 10 were quickly ratified by the states. The 11th eventually was ratified as the 27th amendment in 1992.
The idea that powers not explicitly delegated to the federal government by the constitution are retained by the states and the people is honored more in the breach, I admit.
Doing so assumes we were finished evolving, as an ethical and civil society, over 200 years ago. Doing so assumes that a small group of men, all of them white land owners, many of whom owned slaves, most of whom believed women should never have the vote, most of whom believed black and brown folks should never have equal rights, got everything right. Yes, many of them were brilliant; hell, I still greatly admire many of them, despite their many flaws. They did a fine job, given what was known and understood at the time.
But, frankly, I find arguments that leave no room for change, as is the case with religious discussions, to be boring (also incorrect, but, mostly boring). I've "been there, done that"...I had my constitutional libertarian phase a couple decades ago.
I would like to point out, however, that clearly the authors of the constitution did not think they had written a final document once-and-for-all, as evidenced by two things: 1) including three different means of amending the document, and 2) the very authors of the document proposed a package of 12 amendments as one of their first priorities during the first congress.
I would argue that there are only two ways to view the constitution: 1) it means what it says and if you don't like that, do what the authors did, amend it, or 2) make shit up as we go along. I'm for #1.
And, that's what I'm saying is wrong. You're presenting a false dichotomy. "But, muh Constitution!"
It's boring, and doesn't acknowledge the things that went wrong in all these years of the American experiment.
The only other option is to appoint some small pool of people to try to get us all to collectively pretend that the words mean something other than what they plainly say. That is the path to the rule of man, and I for one prefer the rule of law. There is no middle ground, give or take clarifications. And for clarifications, the burden of proof must be on the government, or the system fails.
Spoken like a true fundamentalist. I've heard that exact phrase from evangelical street preachers.
I understand what you're saying; and have understood it every time you and dbcurtis have said it (in a variety of ways). I am disagreeing with the underlying premise of it. I am not disagreeing that the constitution has built-in mechanisms to change it. I am disagreeing with you that the government the constitution has defined has any ethical right to govern people who did not consent to it. It doesn't matter if it can theoretically be changed, it is premised on a notion I reject.
If you are not jarred from exposure by this essay to the bone-chilling injustice of our current arrangements, you likely did not read it.
If you want to opt out of a society, wonderful. Leave it. Most governments will allow you to leave, and I certainly agree that those which do not are tyrannical.
However, if you try to opt out and refuse to leave, you're a free rider, getting the benefit from the society without agreeing to the rules which helps make it work. It is immoral to benefit from clean air if you refuse to abide by the laws limiting air pollution. It is immoral to benefit from a functional banking system if you refuse to abide by the laws regulating that banking system.
Yes, there are a lot of immoral people in the world. However, waving your immorality around like a flag by saying you don't agree to the system you benefit from is a level to which most of the immoral will not stoop. If you are going to do wrong, at least have the decency to admit you're doing wrong, and attempt to change the system in a constructive way, instead of trying to paint free riding as a moral alternative.
(Ironically, you have to pay more to renounce US citizenship, then you have to pay in all the various filing fees etc when acquiring citizenship through naturalization.)
The Constitution is not the same as society, and saying that the Constitution has no inherent authority or obligation is not the same as opting out of society. In fact, the unthinking conflation of these two concepts (the Constitution and society) is exactly the sort of thing this essay was intended to argue against.
I don't see that in the US Constitution. The preamble talks about things like securing certain blessings, but doesn't really say what they actually are; it uses vague terms like "Justice", which mean different things to different people. The US founding document that comes closest to setting out a defining goal, at least in terms of what government is for, is the Declaration of Independence, and even that is vague: what does "pursuit of happiness" really mean?
(A society without written laws is anarchistic, or despotic. A society without any laws at all is impossible.)
If by "laws" you simply mean that people's behavior in a society is constrained by what other people in the society will accept, yes, it's impossible to have a society without "laws". But that in no way implies that it is impossible to have a society without laws in the sense that term is usually used--i.e., laws that come out of some kind of formal process, either legislative enactments (statute) or judicial decisions (common law) that are accepted as binding on everyone in the society, not just the parties to a particular case.
"The Dispossessed" by Ursula K. Le Guin
"The Moon is a Harsh Mistress" by Robert A. Heinlein
These two give two radically different, perspectives of what such a society, with implicit rules and norms basically enforced by on-the-spot consensus, might look like.
(Note, I'm not saying that societies depicted in these books are likely, or even possible. It's fiction, after all, and arguably utopian fiction at that. But it does help in putting a more concrete image to the abstract concept of anarchism.)
So is a society with written laws, if those laws are not enforced exactly as they are written. Which is the case for every society in human history that has had written laws.
The issue that I take with a paper from 1870 appearing today regarding the governing power of the Constitution is largely one of sheer irony for the situation that we are currently is...because our current system of government was exactly what the US Constitution was designed to prevent.
It's fitting that this was written in 1870 only a few years removed from the Civil War and in the midst of Reconstruction when the US began it's current trek toward consolidated federal power in which a man really does have very little say in the matters of his own governance. State and local governments are more tangible and adaptable to the votes of the people and the ongoing interests of it's citizens as times change.
States that can experiment. Learn from each other. Compete with each other. See things in other states that they like and adopt them with their own local nuance if need be. As a bonus, states have to have balanced budgets.
"The question Whether one generation of men has a right to bind another, seems never to have been started either on this or our side of the water. Yet it is a question of such consequences as not only to merit decision, but place also, among the fundamental principles of every government. The course of reflection in which we are immersed here on the elementary principles of society has presented this question to my mind; and that no such obligation can be so transmitted I think very capable of proof.--I set out on this ground, which I suppose to be self evident, "that the earth belongs in usufruct to the living": that the dead have neither powers nor rights over it. ... On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.--It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law has been expressly limited to 19 years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. The people cannot assemble themselves. Their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal."
(see http://press-pubs.uchicago.edu/founders/documents/v1ch2s23.h... for the full text of the letter, which includes his reasoning for that 19 years figure)
Now, Jefferson was certainly extremely liberal (in the original meaning of the word), but hardly an anarchist.
Also of interest is that he thought that the same logic applies to establishing a meaningful duration of copyright and patents.
"But whether the Constitution really be one thing, or another, this much is certain - that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist."
QFT.