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Jefferson warned us: Constitutions expire
“It may be proved that no society can make a perpetual constitution, or even a perpetual law,” Thomas Jefferson wrote to James Madison in September 1789. “The earth belongs always to the living generation. … 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 …”
Jefferson went on: “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.”
Government by consent of the people has been replaced by government by coercion.
Nearly a century later, the great American anarchist Lysander Spooner insisted that the Constitution only bound those who granted specific and explicit consent.
“No man can delegate ... any right of arbitrary dominion over a third person; for that would imply a right in the first person, not only to make the third person his slave, but also a right to dispose of him as a slave to still other persons,” Spooner wrote in 1882. “Any contract to do this is necessarily a criminal one. ... To call such a contract a ‘Constitution’ does not at all lessen its criminality, or add to its validity.”
Until 1913, our government was small and limited. Federal spending represented an insignificant percentage of GDP. The administrative state as we know it did not exist.
Then the Progressive Era transformed government. Congress created the Federal Reserve. A constitutional amendment that permitted a tax on income was ratified. And senators would no longer be selected by state legislatures but instead by direct elections.
The government could increase its size and scope by either printing money or raising taxes — or both. Previously, the inability to do either had constrained it. And the direct election of senators nationalized their election, further centralizing power.
Government spending grew. Inflation grew — and the real value of money shrank. The regulatory state grew. The administrative state grew. The result: less freedom, less innovation, less wealth.
Now, in our ideologically divided society, the lack of decentralized governance has led to all decisions being nationalized and centralized through an autocratic process. The administrative state promulgates rules, which are then reinforced by an essentially unchecked surveillance state.
For example, when Congress finds itself incapable of building a consensus on immigration, the only way to satisfy the desire to “get things done” is through executive order. It’s an admission of negligence, incompetence, and dysfunctionality.
And the Supreme Court, which Alexander Hamilton once promised would be the “least dangerous branch,” has become perhaps the most dangerous branch.
The current crisis of government legitimacy and disdain for the Constitution may stem from the fact that our government is no longer "of the people, by the people, and for the people." Limited government has indeed perished. Today, legislators agree on almost nothing except borrowing and spending obscene amounts of money to reinforce the corrupt crony corporatist cartel — a government of the few, by the few, and for the few.
Maybe, just maybe, Jefferson and Spooner were right. Our government has gained immense power but lost legitimacy. Why should people today feel bound by a contract they inherited from prior generations without their own consent?
Once we had a small, limited government that represented an insignificant percentage of GDP, with no ability to influence money or monetary policy. The dearth of tax revenues and the restricted money supply helped to constrain the size of government and to limit its role in society. So almost all decisions made by the people were voluntary decisions, expressed through economic and social activity with limited federal government intervention.
Now we have a Leviathan. Our government’s debt exceeds the value of our economic activity. Unfunded liabilities, a tax on future generations, significantly add even more to that debt burden. The Fed has accumulated a balance sheet measured in the trillions of dollars. The tax laws are now represented in text by more than 70,000 pages of statutory code, regulations, and revenue rulings. The Federal Register recording government activity also exceeds 70,000 pages. Most Americans have no idea what’s in it.
Who believes that all of this was consented to by the people? That this is still a government of the people, by the people, and for the people?
Government by consent of the people has been replaced with government by coercion.
Neither party today supports a limited, decentralized government. Both support a broad and ever-expanding presidential authority. The Republicans, once the party of the rule of law, now argue that a president should be unbounded by it. Legislators endorse a limitless executive power, vested in a single person, who should have the right to act with immunity and impunity, with the same privilege extended to themselves, the military, and the police force.
The beauty of limited-term contracts is that the parties are left free to decide on what terms they wish to renew their agreement, if any. It is this power to decide that should be vested in “we, the people.” Only then can we have a Constitution by consent, not coercion.
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