A Nation of Laws and a Pretty Good Shell for Freedom

“Let me not be understood as saying that there are no bad laws, nor that grievances may not arise for the redress of which no legal provisions have been made. I mean to say no such thing. But I do mean to say that although bad laws, if they exist, should be repealed as soon as possible, still, while they continue in force, for the sake of example they should be religiously observed.” – Abraham Lincoln

I often wonder if any politicians (any of them except Ron Paul) actually believe their rhetoric. They take narrow issues and attach broad sweeping generalizations, and contradict those very generalizations on the next issue. Consider some trivial examples:

“Equal work means equal pay!” Agreed. As a lover of freedom and market efficiency, I propose that equal work (productivity) should result in equal pay – otherwise the system is inefficient. Further, as a mathematician, I find that the statement is one of the simplest and cleanest expressions of merit-based pay. Yet the same moral stalwarts who demand “equal work means equal pay!” for women, turn a blind eye when the issue is unions. Unions are notorious for seniority-based pay. But this is just as discriminatory (though age or time-in-the-system is the method, not gender).

“We can’t keep borrowing against our children’s future” … hey, you guys keep voting for budget deficits, if we “can’t” then stop voting that way. Perhaps you only “believe” this when there are political points to be scored.

“We are a nation of laws!” – this one is largely the subject of tonight’s post. Allow me to digress …

We’ve been having a discussion, on and off, for some time now regarding what is or isn’t good public policy and what is or isn’t consistent with freedom. I’d like to point out, as with Abe Lincoln at the intro, that there are two stages of government to which we refer. There is the “way things ought to be” – which is, I would argue, a society of free people and a government that does nothing more than enforce individual human rights: life, liberty, property. The government that does more than this can only do so by trampling one of these rights. By the way, such a government is, I think, very much what the founders of this great nation intended, even though they did not have a full capacity to make it so in their day (slavery, anyone?).

But before we even get to “the way things ought to be” we can discuss “the way things ought to be, given the way they are.” Christians can (and do) debate quite vigorously what good governance ought to be. I draw on such things as the Golden Rule, and the clear scriptural indications that God has left us free to choose good (so we ought to leave each other free to choose as well). Others take a view that government involvement in [insert good deed here] somehow makes us a better, more righteous nation, and is thus a good thing. We often disagree.

What we ought not disagree on, though, is that there is a current state of the law. And, in a democracy, that law ought not change unless it changes in accordance with the political framework. In many cases this just means a majority vote of the legislature. Sometimes in means a super majority, as in the case of constitutional amendments. Either way, we ought, as Christians (and others too I suppose) agree that the current law is the current law and cannot be overrun simply because we want it to be different.

From here, I would argue that the freedom-lover’s agenda actually has pretty strong footing. We don’t need to repeal this or that government intrusion into freedom – we only need a government that abides by the existing laws. And what are those laws? Glad you asked.

Obviously the starting point, the lynch-pin of the whole thing, is the Constitution. It defines the governmental framework for the nation, laying out the specific powers prescribed to the different branches, and stating clearly that the powers not given to the federal government are retained by the states and the individuals. It is unambiguous (unless you’re a constitutional lawyer … then apparently it is confusing as can be).

It is interesting to note that there were those early on who felt the 10th amendment was absurdly redundant: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” “Why would we need such a statement, when it is obviously the case” they thought … oh if they could see us now.

I’d like to point to a few constitutional amendments here and consider, very briefly, their implication. (I’d also like to point out that, as my friend possiblywrong says, “a republic is just a democracy with more inertia.” And that our constitutional amendment process provides just that. You need a 2/3 super majority and 3/4 state legislature approval to change the constitution. This is a significant hurdle, and one that should have meaning.)

How about the 13th amendment: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation.”

Congress passed an amendment declaring slavery illegal. Why? Because under the constitution Congress did not have the authority to declare it illegal – so they passed an amendment! (and good for them.)

Same for the 15th, which prevents voting rights discrimination based on race. They did not have the authority under the constitution to do this – so they amended the constitution.

And the 16th, which allowed the federal government to collect income tax. That’s right, before this they could not – so they amended the thing to give themselves that right. I rather wish they hadn’t, but at least they followed the law to change the law.

I think maybe the 18th is the most telling. Congress did not have the authority to prohibit the sale of alcohol. They lacked constitutional authority! So they changed the constitution (and later changed it back).

My point in all of these is that the congress recognized that their powers were limited by the constitution, and they proceeded to amend to constitution to reserve for themselves powers they deemed necessary. Agree or disagree with their policies (“the way things ought to be”) they at least changed it the right way (“the way things ought to be, given the way they are”).

Then there was the constitutional amendment that allowed government to run a ponzi scheme and dole out the benefits to retirees. And let us not forget the constitutional amendment that allowed the government the hand out benefits, taken from tax revenues, to all manner of “needy” recipients. (What about the one that gave the president authority to hold citizens without due process?) Don’t remember those? That’s right, they don’t exist.

What is the progressive response to this nonsense (and they’re not alone)? “The general welfare clause!” Seriously? Article I, Section 8 of the constitution lists off the reasons congress can tax and spend. It’s a nice list. The section leads in like this: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States” [emphasis added]. Now, a 5th grader (OK, a really smart one) reading this statement and the subsequent list would conclude “ah, congress has the power to do the listed things so they can pay debts, provide for defense and general welfare.” They would not conclude, as so many progressive judges have “ah, the congress can do anything it wants as long as it is doing so to promote the general welfare.” Yet that’s where we find ourselves. (As so many conservatives have noted, why even list off congressional powers if “general welfare” is a “do anything” clause? The list would be just a waste of ink and paper.)

My point is, simply, that if the laws were the laws, and the government were in fact restricted in its operation only to those things allowed by the constitution, then we’d be 90% of the way to my view of “the way things ought to be” just by sticking to the way things are. And shouldn’t we? Shouldn’t all law abiding citizens insist that the government (of all things) stick to the law as it is written and do no more than they are allowed?

Apparently not, if the state of things is to be believed. Apparently some things are “just too important” to follow the rules. Slaves are made in such ways.

So when I hear conservatives rail against illegal immigration with “we are a nation of laws!” I say “are we?” Are we really? Why shouldn’t illegal immigrants flout our laws – we flout them ourselves.

Declaring that we are a nation of laws leads to only one logical conclusion. We must hold to the constitution, strictly. We can change it any time we want, by 2/3 super-majority and 3/4 state ratification. Until then, the law is the law is the law.

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