The Constitutionís Fatal Flaw
by Jonathan Goodwin
for individual liberty and freedom have rightly found several
flaws with the US Constitution, on philosophical and moral grounds
as well as on practical grounds. Many of these criticisms
offer the open-minded some reason to at least consider the possibility
that the document should be viewed in a light other than that
with which is normally shed.
I would like to review some of these criticisms before I come
to what I believe is the one, most fatal flaw in the document
– the one defect that most directly exposes that the purpose
of the document was to enable usurpation, and the one defect that
renders as irrelevant the entire purpose that men might normally
enter into such a pact, therefore making the document useless
for this most important end.
Usual (and Not-so-Usual) Suspects: Why the Constitution is Flawed
Didn’t Sign It
Can one be obliged to the terms of a contract to which he was
not a willing party? Can he be bound because his neighbor
wishes him to be? It would seem that reason argues against
such a tyrannical concept, yet it is the premise underlying the
validity of the Constitution: the social contract.
The laws holds, and reason declares, that if a written instrument
is not signed, the presumption must be that the party to be bound
by it, did not choose to sign it, or to bind himself by it….And
if he do not then sign it, his reason is supposed to be, that
he does not choose to enter into such a contract.
Language is Vague, and the Meaning is Unclear
Two clauses offer good examples of such vague language –
enormous loopholes, if you will. These are the General Welfare
Clause and the Necessary and Proper Clause. The General
Welfare Clause has been used to justify virtually any legislation
by the federal government, for
In March, 2010, Representative John Conyers of Michigan said,
because of the “good and welfare clause” of the Constitution,
President Obama’s healthcare legislation was Constitutional.
As an aside, the Supreme Court found a different, even more sinister,
reason to uphold this monstrosity of a bill – as Congress
has the authority to tax any activity it chooses to tax, every
act can be deemed Constitutional merely because it is taxable.
Add a new, significant flaw, I suppose.
As to the Necessary and Proper Cause, the term speaks for itself
(despite the protestations of many Constitutional conservatives)
– and has been thus exploited, beginning with decisions
of the Marshall Court at a time when many of those who signed
the document were still alive. Even Jefferson, the so-called
champion of classical liberalism, did
nothing as President to dissuade the court from such expansive
interpretations when he had the opportunity.
it in Writing
This is a flaw? Many look to a written constitution as a
check on state power. The Magna Carta is hailed as groundbreaking
in this regard. For this, it is worth considering an alternative
Such an environment [without a written constitution], while somewhat
unstable for the people, was even more so for the king.
He was only one man – a man with some form of kin-right
or birth-right, eventually coming to be sanctified by the church,
but still he was one man; and equally bound by and to the same
law as all other men. He was “controlled” by
the law, not controller of it:
From the point of view of constitutional machinery, the control
exercised in this way by the law will presumably be very incomplete
and insecure – the very breadth of the mediaeval idea of
law allows us to guess this. But in theory there resulted
a complete control of the monarch, a subjection to law so thorough
that political considerations and reason of State were excluded
and out of the question.
That the monarch faced the same insecurity and instability in
the law as did the people was the most remarkable check on any
potential abuse. As opposed to modern, constitutionally
defined states where it evolves that it is only the people that
have to fear the law, in the mediaeval time all were equally subject
to and therefore controlled by the law.
Has Been Hijacked
If it wasn’t for [insert your least favored President] and
his action of [insert your example of his most egregious abuse],
or if it wasn’t for [insert your least favored Supreme Court
Justice] and his vote for [insert your example of his most horrific
decision], the Constitution would work just fine.
There are some who suggest that the Constitution is not flawed
at all, and that it has accomplished exactly that which was intended
– to create an ever-expanding centralized state. So
to these critics, the mere fact that the document exists is the
fatal flaw. I again return to Spooner:
But whether the Constitution really be one thing, or another,
this much is certain - that it has either authorized such a government
as we have had, or has been powerless to prevent it. In either
case, it is unfit to exist.
I tend to agree with this last sentiment, and tend to believe
that the Constitution has achieved that which was intended by
its most ardent advocates.
Having outlined a few of these flaws, I remain open to the possibility
– in fact, the necessity – that men would voluntarily
come together and form some pact, some contract, with the objective
of one very specific purpose – sadly, a purpose not identified
anywhere in the US Constitution.
Come Together to Form This Thing Called Government?
We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the
pursuit of Happiness.--That to secure these rights, Governments
are instituted among Men, deriving their just powers from the
consent of the governed….
Sadly, Jefferson’s use of the phrase “pursuit
of happiness” either accidently or purposefully confused
what I believe to be the more appropriate terminology in support
of the formation of government, offered by John Locke:
Locke argued in his Two Treatises of Government that political
society existed for the sake of protecting "property", which he
defined as a person's "life, liberty, and estate".
Each of us has a natural right – from God – to defend
his person, his liberty, and his property….if every person
has the right to defend – even by force – his person,
his liberty, and his property, then it follows that a
group of men have the right to organize and support a common force
to protect these rights constantly….And the common
force that protects this collective right cannot logically have
any other purpose or any other mission than that for which it
acts as a substitute.
If this is true, then nothing can be more evident than this: The
law is the organization of the natural right of lawful defense.
If a nation were founded on this basis, it seems to me that order
would prevail among the people, in thought as well as in deed.
It seems to me that such a nation would have the most
simple, easy to accept, economical, limited, non-oppressive, just,
and enduring government imaginable – whatever its
political form might be.
While I take comfort that such brilliant liberal thinkers as these
have offered these words, their approval is not necessary for
me to be comfortable in my view: when considering what it is that
I would look for in being party to a voluntarily formed institution
for the purpose of government, it would be to assist me in the
protection of property. I would ask nothing more, as all
other functions currently assumed by the leviathan that crushes
us can and should be handled in a market setting, to the extent
these are desired at all.
I would agree to a pact that offered protection for my property;
for this I would offer my assistance in exchange. For protecting
my property, I would voluntarily go in league with those in the
community that I would find helpful to me towards such ends.
By saying this, I do not suggest any form of monopoly or coercion
in this pact – only that it is an agreement that I would
I have witnessed and been party to many discussions about exactly
this question – usually in the context of discussing anarchy
as opposed to some version of that which is the current state.
In the end, the issue of the warlord is raised – one way
or another, men must join together to defend jointly that which
they cannot defend individually.
To varying degrees, Jefferson, Locke, and Bastiat recognized that
this is the fundamental purpose of government – the protection
of property and life, the organization of the natural right of
lawful defense. As for me, if government is not for the
benefit of the protection of my life and property, I have no use
For my purpose here, it is not necessary to draw a specific line
as to what this concept would mean in practice – the line
is somewhere in between a neighborhood watch program and drone
strikes on wedding parties 10,000 miles away; somewhere in between
hiring a neighborhood security guard to walk the streets and the
dozen or more spy agencies currently in existence.
But the concept is the protection of private property. If
the concept of protection of private property is not explicit
and absolute in the contract, then I find no reason to go in league
with others to form “government.”
is this identified in the Constitution?
contains almost 4,500 words. The term “property”
appears exactly once:
The Congress shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property
belonging to the United States; and nothing in this Constitution
shall be so construed as to Prejudice any Claims of the United
States, or of any particular State.
With this, the Constitution provides for the control, use, and
disposition of property belonging to the United States government,
but is silent regarding the same authority and protection to those
who reside therein.
The first ten amendments of the Bill
of Rights contain just over 700 words. In these, the
word “property” appears twice, both times in the Fifth
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or
in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law; nor
shall private property be taken for public use, without just compensation.
This amendment establishes ground rules of how an individual might
be deprived of property, but nowhere is there anything said specifically
about the role of government in protecting private property –
there is no pact of the type I suggest.
To make matters worse, even the watered-down protection afforded
by this amendment has ceased to have any meaning: what passes
for “due process of law” is laughable, and the only
“just compensation” for a property owner is that compensation
to which he voluntarily agrees – not compensation determined
by force through eminent domain, or taxes for so-called public
goods and services.
In the remaining amendments, there is only one use of the term:
All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside. No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of
No requirement that the government protect my property is presented
here either. And once again, a meaningless amendment as
the phrase “due process of law” is a malleable term
as it is used today. Law is meaningless if it does not protect
the individual. It is meaningless if it does not protect
private property. The act of passing a “law”
on any matter in any direction is not “due process of law.”
tyranny of the majority is not the foundation on which proper
law can be built.
There is no intent in the Constitution to provide for the protection
of private property, as there is no explicit statement in the
document for the protection of private property. Nowhere
does the Constitution explicitly provide for this as a role for
the government being formed. There is no pact or agreement
for government to provide the one and only useful function for
which I would find reason to offer support – that being
to protect my property.
I care about the terms and methods of elections, the rules that
are supposed to be held between the general government and the
states, the supposed separation of powers? Of what use is
any of this to me if protection of my property is not part of
For the purpose
of the protection of my property, I will freely and gladly make
pact with my neighbors, and fund that which is necessary to achieve
this objective. Call this government, or any other name
you choose. But if the Constitution is to be useful to me
for anything, it would have been this.
Yet, there is not one single statement about this in the Constitution.
And this is the fatal flaw. The flaw that exposes the document
as one devised to enable the usurpation that has occurred from
with permission from the Bionic
© 2012 Bionic