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The Founders’ Constitution
Michael S. Yashko
Presentation to
Eagles for Liberty
11/08/11
Syllabus
• Introduction
• My Thesis –
Constitution is Dead
• Understanding Why
• Questions & Discussion
The (Founders’) Constitution is Dead
• Ceremonial Parchment
• A Stage Prop
• Limited Constitutional Gov’t
(1776-1864)
• Centralized Mass Democracy
(1864-present)
Questions
• What is Liberty?
• What is Freedom?
• Are freedom and economic well being the
same thing?
• Guess what I believe
What is the proper role of
government in the lives of free
people?
What was the Constitution (and not)?
• FUNCTION AND FORM OF THE
GENERAL GOVERNMENT
• Life, Liberty & Pursuit of Happiness
• To Secure these Rights, Governments are
instituted among men
Article I, Section 1
• All legislative Powers herein granted shall
be vested in a Congress….
Article I, Section 8
• Congress shall have the power to ….
[enumerated powers]
• And To make all Laws which shall be
necessary and proper for carrying into
Execution the forgoing Powers and other
Powers vested by this Constitution in the
Government of the United States….
Pre-amble to the Bill of Rights
• The Conventions of a number of the
States, having at the time of their adopting
the Constitution, expressed a desire, in
order to prevent misconstruction or abuse
of its powers, that further declaratory and
restrictive clauses should be added: And
as extending the ground of public
confidence in the Government, will best
ensure the beneficent ends of its
institution:
Ninth Amendment
• The enumeration in the Constitution of
certain rights shall not be construed to
deny or disparage others retained by the
people.
Tenth Amendment
• 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.
Competing Visions of Liberty
• Islands of Government in a Sea of Liberty
• vs
• Islands of Liberty in a Sea of Government
– Randy Barnett (Georgetown)
New Orleans v. Savannah
Illumination of the Constitution circa 1796
• November 26, 1796 - fire devastated
Savannah
• Southern representatives asked Congress
for $15,000 to $20,000 in federal aid.
New Orleans v. Savannah
The Constitution circa 1796
• Nathaniel Macon (North Carolina): “[H]e wished
gentlemen to put their finger upon that part of the
Constitution which gave that House power to afford them
relief . . . . He felt for the sufferers, . . . But he felt as
tenderly for the Constitution; he had examined it, and it
did not authorize any such grant.”
• Andrew Moore (Virginia): “... every individual citizen
could, if he pleased, show his individual humanity by
subscribing to their relief; but it was not Constitutional for
them to afford relief from the Treasury.”
• The aid bill was defeated.
“At this point, we would have expected a sharp,
crisp response to this terrible tragedy [Hurricane
Katrina] ... Instead, we witnessed what appeared
to be a sluggish initial response [from FEMA].”
Susan Collins
Senator (R-Maine)
“Our investigation revealed that Katrina
was a national failure, an abdication of
the most solemn obligation to provide
for the common welfare..."
11 Member Republican House Select Committee on
Hurricane Katrina
“What the cynics fail to understand is that the
ground has shifted beneath them - that the stale
political arguments that have consumed us for so
long no longer apply. The question we ask today is
not whether our government is too big or too small,
but whether it works - whether it helps families find
jobs at a decent wage, health care they can afford,
a retirement that is dignified.”
Barack Obama
Inaugural Address - January 20, 2009
(Chains You Can Believe In)
“We’ve had enough of the stale debate
between big government and indifferent
government. Government must be
active enough to fund services for the
poor.”
George W. Bush
Notre Dame Commencement – May 20, 2001
Framing the Issues
• “Stale Debate” – Bush & Obama
• Circa 2009: Proper Role & Size of Federal
Government is no longer even an
acceptable question to ask.
• That question preoccupied the Founding
Generation for their entire lives!
“I’d be embarrassed if I didn’t always ask for
federal money whenever I got the chance.”
Mitt Romney
Re: Big Dig Fix – Boston Globe 7/18/06
Limited Government Conservatives
and Libertarians “cling to hope that
someday, somehow, the federal
government will be reduced in size.”
Fred Barnes
Executive editor, The Weekly Standard
“[F]iscal responsibility" means that federal spending
increases at "a slower rate of growth" than if the
Democrats were in power.
Ed Gillespie
Former RNC Chairman
“Just as socialism [is] no longer the guiding goal
for the Left . . . Reducing the size of government
cannot be the governing philosophy for the next
generation of conservatives.”
David Brooks
N.Y. Times columnist
“The question is not whether you legislate
morality. The question is whose morality you’re
going to legislate.”
Gary Bauer
President American Values (Your voice to protect Life,
Marriage, Family, Faith and Freedom)
“The role of government is to uphold standards
that are healthy for society.”
James Dobson
Founder, Focus on the Family
“The government must be involved in health
transformation at three levels: as
policymaker, as employer, and as provider
of health care for the poor, the elderly, and
the disabled.”
Newt Gingrich
Real Change, 2008
Under President Bush, the Republican Congress
“added for the first time an overdue prescription
drug benefit for seniors and did so at a reasonable
price.”
Newt Gingrich
"We'll be back this year [2004] to do it
[global warming legislation]."
Campaign finance reform took us seven
years. This may take longer, but we'll
stay at it."
John McCain
I am going to “ride the tide with commonsense candidates”
and help “heroes and statesmen” like McCain.
Sarah Palin
Facebook
“Are we willing to say that the country is worse
off because of FDR or JFK or LBJ? I’m not
willing to say that.”
Bill Kristol
Editor, The Weekly Standard
How did we get here?
• Republicans Only
• Who still argues that the Founders’
Constitution exists?
“In our day these economic truths have become
accepted as self-evident. We have accepted, so to
speak, a second Bill of Rights under which a new
basis of security and prosperity can be established
for all - regardless of station, race, or creed.”
Franklin D. Roosevelt
State of the Union Address 1/11/44
(economic rights)
Here We Are: Negative v. Positive Rights
• Right to be left alone – Founders’
Constitution - Charter of negative liberties
• Right to a job, health care, housing, etc. what the government must do for you
(FDR – Obama)
What is Government’s Proper Role?
The Transformation of American Politics
• To understand the present – understand
the past from which it evolved.
• Since the Founders’ Constitution, political
thought and practice have undergone a
major change.
What is Government’s Proper Role?
The Transformation of American Politics
• Political thinking always implies a view of
human nature and society. Experiment in
self-government.
• Transformation of the founders society to
ours involved a major change in the selfunderstanding of Americans
What is Government’s Proper Role?
The Transformation of American Politics
• To understand the transformation of
American Politics need to consider basic
questions of human existence that were
on the minds of the Founders
– What is the nature of man?
– And, what type of government is appropriate
to that nature?
– What is the purpose of politics and social life?
What is Government’s Proper Role?
The Transformation of American Politics
• Life, liberty and pursuit of happiness were
fundamental rights of human beings, i.e., the
goals of human existence.
• If the Framers set up political institutions they
thought would be conducive to the pursuit of
these goals, then the marked changes in
American politics (centralization of power,
reduction of state and local autonomy) must be
explained by new or different goals of human
existence. What are they?
The Unwritten Constitution (Ryn)
• Founders Ethos
– Concrete Virtue
• Make best of self
• Take care of family
• Look after friends & neighbors (real people w/names)
• Modern Ethos
– Abstract ideas & sentiments
• Cares about no one in particular (shout outs)
• No requirement to make best of self
• Delegates responsibility; typically to centralized gov’t
Founders’ virtue v. Modern virtue
• Founders’ virtue
– manifests itself in individual, personal
responsibility
– tends to foster a decentralized society
• Modern virtue
– manifests itself in abstract ideas and sentiments
– tends to foster a collectivistic and centralized
society.
Competing Moral Ethos
• resemble each other in terminology
• incompatible views of human nature and
society
• radically different social and political
ramifications
• Liberty v. Tyranny (cue Hayek)
The Founder’s Constitution
• It’s not the Constitution that made American
Society possible, It’s the Founders’ Society
that made the American Constitution possible
• Make the best of self, take care of family &
look after your neighbors
• Decentralized Government - Federalism
One More Generation…
• Not a Living Constitution but a Dead One
• But even traditions transformed or weakened
over time continue to influence public conduct
and with it the shape of both people and
nations
• People know we are on wrong course but they
can’t articulate why
• Learn (teach it) it or loose it forever
As a Founder …
• What kind of life do you want for yourself,
your children and your grandchildren?
• The type of government you choose will
determine whether that life is possible!
• THINK. And, ask yourself this question…
Ask Yourself This Question. . .
What is the proper role of
government in the lives of free
people?
Why is the question important?
• Government is not reason, it is not
eloquence, it is force….
– George Washington
Your Life
Gov’t Coercion =
Fines, Force
& Imprisonment
Riddle Me This
• “[I]n wide area of life majorities are entitled to
rule, if they wish, simply because they are
majorities…. [T]here are nonetheless some
things majorities must not do to minorities,
some areas of life in which the individual must
be free of majority rule.”
– Judge Robert Bork, The Tempting of America
Questions, Questions
• THINK - systematic, disciplined and deep –
foundational concepts & principles
• So successfully brainwashed with the principles
of Modern State that we accept the premises
unthinkingly – unaware even of our own
assumptions
• Unexamined ideas & assumptions lead us
thoughtlessly down paths we would not go if we
studied the issues thoroughly and systematically
Questions…
• The interesting question about the “stale
debate” is - Why?
• Why can’t we even debate it anymore?
• And the answer says more about us as a
people than it does anything else.
“I think we should just trust our president in
every decision he makes and should just
support that, you know, and be faithful in
what happens.”
Britney Spears
CNN.com – 9/03/03
“In questions of power, then, let no more be
said of confidence in man, but bind him down
from mischief by the chains of the
Constitution.”
Thomas Jefferson
Kentucky Resolutions of 1798
If we abandon the ideal of limited
constitutional government, then who
will defend liberty?
The Power of Ideas
– “What do we mean by the Revolution? The war? That
was no part of the revolution; it was only an effect and
consequence of it. The revolution was in the minds
of the people, and this was effected from 1760 1775, in the course of fifteen years, before a drop of
blood was shed at Lexington.”
– Letter to Thomas Jefferson (8/24/1815), The Works of
John Adams
• “It’s late, but the battle of ideas has finally
been joined in earnest. I say ‘in earnest’
because people finally realize that both
political parties are speeding us down F.A.
Hayek’s Road To Serfdom. People finally
grasp that the choice is not between
Republicans and Democrats, but between an
intrusive federal nanny-state run by both
parties or a movement by the people to take
back the power originally reserved for them by
the Founders.”
– Michael Yashko, Naples Dailey News, May 2009
Your Touchstone
Ask Yourself This Question about every
government proposal . . .
What is the proper role of
government in the lives of
free people?
Suggested Readings
•
•
•
•
•
•
The Unwritten Constitution - Claes Ryn
Liberal Fascism – Jonah Goldberg
The Road to Serfdom – F. A. Hayek
Leviathan on the Right – Michael Tanner
Nullification – Thomas Woods, Jr.
The Case for a Federalism Amendment –
Randy Barnett