From: Black Unicorn <unicorn@access.digex.net>
Date: Fri, 29 Apr 94 17:30:31 PDT
To: jkreznar@ininx.com (John E. Kreznar)
Subject: Constitution and Contract [Was: CIA & FBI]
In-Reply-To: <9404291127.AA15821@ininx>
Message-ID: <199404300029.AA07483@access1.digex.net>
MIME-Version: 1.0
Content-Type: text/plain


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> Unicorn writes:
>
> > If the current structure of government is proper true to the 
> > constitution, and more importantly the goal of a stable
> > government with co-equal branches, then respecting those
> > "concepts of law" is to embrace centralism, regulation of 
> > markets, export restrictions and an ever growing executive
> > branch.
> 
> > If the current structure of government is improper, and goes
> > beyond the bounds of power the framers intended, then
> > respecting those "concepts of law" is to reject the current
> > state of affairs.
> 
> Surely someone of Unicorn's erudition is aware of Lysander Spooner's
> words on this subject, but just to remind the others, here are some
> of them:
> 
> Spooner wrote these words in 1869 (_eighteen_ sixty-nine); imagine
> what he might have written today!
> 
>	The Constitution has no inherent authority or obligation.  It has 
>	no authority or obligation at all, unless as a contract between
>	man and man.  And it does not so much as even purport to be a
>	contract between persons now existing.  It purports, at most, to
>	be only a contract between persons living eighty years ago....
>
[Lack of representation makes Constitution an invalid contract]
>
 
 
This is part of the reason I reject the contention that the Constitution 
is a contract among peoples.  As far as contract law goes, this makes 
every Constitution invalid and a pointless exercise if you adopt 
this theory.  Under this model all constitutions, indeed all governments 
would have to be passed unanimously by a national vote.  Those 
constitutions that do not bear the signatures of all the citizens are 
either not valid or not binding to those citizens.  How can this be 
rationalized in context?  Are we to adopt all the elements of contract 
law to constitutions?  Are we to apply the doctrines of inability to 
contact to constitutional protections?  This would require us to deny 
constitutional protections to minors, and infants.  What about the 
mentally infirm?  Women in the 17-1800's?  Will we apply doctrines of 
efficient breach?  Commercial impracticability? (No government would 
exist!)  Promissory estoppel?  Can 3rd party beneficiaries sue for 
losses?  Clearly an attack on a constitution on these grounds has no 
bearing in practical application, or explanation.
 
Even in 1869, the heyday of Victorian Legal Thought, where one could not 
be held liable except by an act of self volition, the idea of strict
contract law being applied to social duty, or limitations on power, and 
thus Spooner's theory, was rejected.  This in an era where debts were 
non-assignable because it was looked upon as pushing the parties into an
agreement they never contemplated or consented to.  Yet, Victorian 
Freedom of Contract at its height still rejected the "constitution as 
contract" theory.
 
The federal government rules by the sword, but proports to due so under
the Constitution.  The continued acceptance of the process, the
participation in elections, the oath that high officials take, the
amendment process, the continued existence of the three branches of
government, all lend themselves to the assumption that if not accepted, 
the Constitution is at least tolerated by the populous and the rulers.
 
Consider the Supreme Court of the United States.  The Court has no 
police, no army, no command authority, no enforcement branch what so 
ever.  (Forgetting the Supreme Court Police who guard the building)
What then keeps the other branches from disobeying the rulings of 
the Court? Nothing but respect for the structure of government.  
This in itself is impressive for a structure established by a document 
with "no authority."  If there is a historical precedent for such an 
institution, an institution of unelected officials who pass down at 
times massively unpopular decisions that are none the less followed 
without the slightest force to back them, I am unaware of it.  How can 
one deny the genius of this structure?  (Even if the current trend of 
decisions is questionable).
 
The United States does not claim its authority to be rooted in divine 
grant, nor in pure power over the people, nor in a quest for utopia, but 
in consent of the people.  In so far as the United States remains a
representative democracy, it looks to the Constitution for its rules.
 
The Constitution is not a contract at all, but a grant of authority.  
A deed with covenants of sorts.  You may rule provided you follow these
rules, and if you don't, the people reserve the right to overthrow you.
 
Spooner's position represents a tact that was fashionable in the day, 
that being the dismissal of sovereign authority on many grounds 
and using disciplines from economics to philosophy to science.  
What Spooner's theories lack is timeliness.  They are, in fact, really
just reiterations of the anti-federalist position in the late 1700's.  
These included objections to the notion of a constitution because of 
its betrayal of the concepts that the revolution was fought for.  The 
anti-federalist position relied heavily on the objectionable nature of 
removing people from the political process and the lack of individual 
control.  See generally, H. Storing, What the Antifederalists Were For 
(1981).  This line of argument is quite old and tired by 1869, and 
really represents a throwback.
 
One must remember that power was surrendered to the federal government 
by the people and the states conditioned upon limits.
 
Power was not, in the reverse, granted to the people and signed for in 
receipt.
 
It is such that I reject the following assumption:
 
>	The Constitution has no inherent authority or obligation.  It
>	has no authority or obligation at all, unless as a contract
>	between man and man.
 
Instead I feel the Constitution should be looked at as a grant of power.
The argument that such grant should expire after the grantors do seems 
to rely upon the notion that the grant was some sort of limited term 
leasehold on power.  "You may rule for one generation" in effect.  To my 
view, this is silly.  Instead it is a conditional grant of power 
providing in part that:
 
All legislative Powers herein granted SHALL be vested in a Congress of 
the United States....  Art I sec.1 [1]
 
No Person SHALL be a Representative who shall not have attained to the 
Age of twenty five Years....  Art I sec.2 [2]
 
The Executive power SHALL be vested in a President of the United States 
of America....  Art II sec.1 [1]
 
My emphasis.
 
See also, U.S. CONST. Amend. X.
 
Insofar as these conditions are met, government authority is legitimate 
by the terms it was granted.
 
Or as I said before:
 
> > If the current structure of government is improper, and goes beyond
> > the bounds of power the framers intended, then respecting those
> > "concepts of law" is to reject the current state of affairs.
 
 
>
>	APPENDIX.
>
>	Inasmuch as the Constitution was never signed, nor agreed to, by
>	anybody, as a contract, and therefore never bound anybody, and is
>	now binding upon nobody; and is, moreover, such an on as no people
>	can ever hereafter be expected to consent to, except as they may
>	be forced to do so at the point of the bayonet, it is perhaps of
>	no importance what its true legal meaning, as a contract, is
 
[Deletions]
 
The government rules by the bayonet only because it was given the 
bayonet by the states and the people.  The problem of preventing tyranny 
is in the structure established with the grant, and it is here that the 
need for embracing the concepts of "law" within the constitution is 
important.  Questioning the previous generations for their audacity in 
waiving your "rights" to anarchy is on the same order as questioning the 
audacity of those who set down the doctrine of Freedom of Contract.  The 
hand of the dead does influence the exercise of power.
 
Mr. Sandfort is correct in my view.  There is no "magic" in the 
Constitution.  It is a guidebook, and no more; but what a guidebook it 
is.  It contains within a concept of government structure that has 
endured and maintained relative stability and freedom from tyranny for 
quite a while now.  The Constitution of the United States does not say, 
"Follow me because I am law", but rather "This is the recipe for a 
stable check against tyranny."
 
If the federal government mixes the recipe with too much power, the 
checks against tyranny established by the Constitution threaten to 
topple.  It is this that worries me.  It is this that worried the 
framers.  Should we dismiss their genius because it is old?  Because it 
did not bear the unanimous mandate of the people?
 
> 
>These are excerpts from Spooner's article "No Treason: The Constitution
>of No Authority", available from Laissez Faire Books, 1-415-541-9780 in
>San Francisco.
> 
> 	John E. Kreznar		| Relations among people to be by
> 	jkreznar@ininx.com	| mutual consent, or not at all.
                                ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
 
A Victorian after my own heart.  I think we disagree, if we differ at 
all, in the application of this theory to grants of authority.
 
 
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