When the Constitution of a society is abrogated by those in various positions of political and economic power by either mutiny, insurgency or conquest, the Rule of Law essentially becomes the law by those who rule. The specific authority granted to the governing body by its Citizens becomes lawfully severed thus creating an “Unconstituted” authority.
Operating without the authority of the people, the system generally becomes more and more hostile to the very people whose authorization is required for it to be lawfully valid; hence, why our founding fathers adopted the Declaration of Independent, and winning the Revolutionary War immediately started the process of reconstituting legitimate authority for the newly freed Colonies.
Sadly, in my opinion, today we have to go back in history, quite a ways further than one would think, to lawfully reestablish our Constitution, as it has been abrogated for so long and at such high degrees, that deciding at what point the authority became unconstituted, not only because of the subjective nature of the determination but because it almost started immediately following its ratification.
Thomas Jefferson himself reportedly agonized over the use of public funds to expand the Country via the Louisiana Purchase, as there are no specific provisions in the Constitution that authorized such an action; one of the few times where the means may have justified the end. At least no one died while making the purchase. The later decimation of the natives is another sad part of our history and I don’t see anywhere in the Constitution granting that right to the military either. The French basically sold us the land that the Native Americans actually already owned and got paid. That’s the ultimate fence (illegal).
Those who support central planning versus a free market economy as envisioned by our founding fathers almost always fall back on just one (1) clause in the U.S. Constitution, “The General Welfare Clause” as the rationale for abrogating the various Articles. Thomas Jefferson stated: Limited vs. Universal Powers, “I say… to the opinion of those who consider the grant of the treaty-making power as boundless: If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives.” –Thomas Jefferson to Wilson Nicholas, 1803. ME 10:419 “Aided by a little sophistry on the words “general welfare,” [the federal branch claim] a right to do, not only the acts to effect that which are specifically enumerated and permitted, but whatsoever they shall think or pretend will be for the general welfare.” –Thomas Jefferson to William Branch Giles, 1825. ME 16:147
The crux of this argument is that in truth, no one or a group, no matter how well informed, can really know what the General Welfare of the majority really is. As in the case with Jefferson and the Louisiana Purchase, he knew he was breaking the Constitution, but only “believed” it was “essential” to the General Welfare of the United States. He “believed” he needed the French to fight off the Brits constant military advancements and he knew Neapolitan needed the money. He basically broke the Constitution on a “gamble” that just so happened to pay off, but it also opened the door for continued abrogation’s of the Constitution, without the Citizens approval. I can only recommend that in any future event where our government believes the Constitution truly needs to be abrogated for the General Welfare, that any such actions be given the fully required actions of a Constitutional Amendment and/or Convention, and most importantly on a case by case basis and then repealed after the specific action is accomplished. This would stop in its tracts the continuous unconstitutional acts of our ruling class under the General Welfare and or Commerce clauses which is the other favored excuse for their continuous abrogations and usurpations.
As another example, “privateering” or the use of privately owned and operated ships to fight battles and/or wars was used extensively during our Revolutionary War and more importantly without such privateers, there is a great likelihood that we would have lost the war. If not coupled with the various militia groups throughout the Colonies, funded and operated by “private” individuals, we surely would have lost to the war. The point is, once the government-run military force became operable, privateering was soon banned, despite no Constitutional Authority or legitimate rationale for doing so. Additionally, the provisions of the Constitution that call forth the use and organizing of militias has been abrogated as the funding for any army is not to exceed two years and was supposed to only during Declared wars.
A third example and there are way too many to detail in this summary article, is the succession of the various Confederate States prior to the Revolutionary War. If a State can ratify its entrance (basically a contract) into a Union of States, do those Citizens of that State not also have the authority to quit or succeed from that Union by voiding the contract, if they feel the Union is no longer acting in the best interests of We the People of that State? I do not see one attestable element of the Constitution that gave the Union the authority to wage war on a State(s) who decides to succeed. By the way, Fort Sumter was under South Carolina’s legal jurisdiction and was unlawfully occupied by the Union Army and asked to leave. Additionally, the Union did leave, and nobody died during the eviction process but the Union of course used the “forced” eviction (yes, the Confederates fired the first shot) as grounds for the Union to really start the war. Large levels of ground and naval troops were being deployed by the Union in anticipation of the attack. The Union was going to war, it was just a matter of the required level of provocation and those that said or say otherwise, are the same type people whom tried or try to continually abrogate the Constitution under fallacious pretenses.
Essentially what has happened with our government, as political power increases, so does the usurpation of rights also must increase, as well as the repeated attempt to usurp the rights of We The People, in an attempt to gain greater and greater tax and regulatory powers. For these type people, it is merely about control and power for personal or social gain that comes with it. Of course, cronyism, graft, and corruption become increasingly rampant and are an integral part of any politic system; hence, why the restraint on political power, is a necessity in the first place.
Of course, our founding fathers knew this, as they had lived under the British Crown and the aristocracy (Tories) that made up the ruling class during that period in our history. They knew exactly what a political system is capable of, as we have seen historically since the beginning of time. Governments do not change nor do those that seek such power. It’s pretty simple, the power to tax is the power to destroy, as Chief Justice John Marshall alluded to. The fewer taxes that We the People pay the government the less power government will have and the more likely Citizens will be able to maintain their Constitutional Rights and restrain government.
The lack of understanding of the full intent of our Constitution and more specifically why the Founders and Citizens took such efforts and time to ratify the Constitution and Bill of Rights is our biggest problem. It took, from Sept 14, 1786, Annapolis Convention, which recommended the calling of a Constitutional Convention at Philadelphia, to the end of the last State, Virginia’s ratifying convention, to process the drafting and ratifying the United States Constitution. So it took just over five years to finalize the process which occurred on Dec. 15, 1791.
After 212 years of our democratic Republic, what we have ended up with is that most of the Amendments of the Bill of Rights have been usurped and just about all of the Constitutional limitations placed on government have been abrogated. Hence, we are no longer a lawfully constituted society and operate under a system so racked in fraud, corruption, confrontation, and manipulation that it reeks from many of the elements of a third world nation. High crime, incarceration and suicide rates, constant wars, usurped individual rights, oppressive levels of taxation and regulations, declining social and institutional morays, rampant business, government and judicial corruption and graft, declining educational levels, high levels of recreational and pharmaceutical drug use, poor healthcare, the constant debasement of the currency and the resultant price inflation and the continually diminishing hope by our Citizens of a civil recovery from such as debouched system. The last several Presidents of the United States have been outright frauds and criminals but are just too arrogant, ignorant or sociopathic to know or recognize it. Perhaps as Thomas Paine suggested, it is better to have no government than an intolerable one.
Now here is the sad part. Most Americans have no specific idea, as to why the various limitations were placed on government, to begin with, and therefore they believe the oligarchy’s constant mass media meme that much of the Constitution is passé because we have surpassed sociologically and technologically the need for such limitations. We the People ourselves have fallen for the very same repressive laws and memes that were once imposed on our founding fathers, except we, not understanding or having lived under the ramifications, continue to acquiesce our individual rights, despite the historical evidence for the necessity of their uncompromised protections.
Until such time as people wake up to the facts that people who seek power through political means are not looking out for the best interest of the majority and are instead looking out for their own self-interest, first and foremost, and that any benefit(s) that are promised are riddled with various underlying negative ramifications, far worse for the majority, than the benefits received. Economic principles and human nature do not change and despite all the efforts of 4,000 years of education and so-called progress, we have not changed the human experience. Today, the aristocracy has been replaced with a professional class coupled with a very wealthy monied/banking class, that has gained its power and influence through the usurpation of individual rights and unconstitutional central banking practices just as the Monarchs used, using cronyism and protectionist policies. Right back where we left off 225 years ago with a ruling oligarchy who act like they are our Kings.