The Day The Constitution Failed
In a previous article (To Establish Justice), I established the fact that the Preamble to the Constitution states the purpose of the Constitution and the purpose of the National State. Additionally I lay out the argument that the State fails to achieve its stated purpose and therefore the Constitution itself fails to provide what it promises. Also, in an earlier article (The Taking and Following of Oaths) I made the argument that the current government, functioning from its headquarters in Washington DC, openly violates the Constitution and is therefore an illegitimate authority and not a constitutional government. So then the point we are left with is to establish when the Constitution failed and if that failure could have been avoided and how the State can be restrained.
Some people in the liberty movement would have us believe that the Constitution failed when the “Patriot Act” was signed and all we have to do is repeal it, correct DC’s spending problem, and bring taxes down to an acceptable level and America would “return to its glory”. While I would agree that the Patriot Act was a blatant trampling of not only the intent but also the letter of the Constitution, it was simply the page in the book that people remember because it happened recently. But the Patriot Act was by no means out of the ordinary. It was simply business as usual for this many headed monster that dwells in the city named after George Washington.
Some people of my generation and those a few years older than I, will point to the double hit the Constitution took under the guidance of a real pair of jokers, LBJ and Tricky Dick Nixon. True enough, undeclared war, monetary shenanigans, interference in a laundry list of third world countries, and the birth of the “war on drugs” took deliberate acts of treason against the Constitution and against the best interests of the American people, but again its just business as usual for this gang of thieves in their robber’s roost on the Potomac.
Some people more aware of the history of the Progressive Movement, will point to one of three presidents that, it seems as we look back with hindsight, could not have made worse choices in setting the pace for the 20th century. Teddy Roosevelt, Woodrow Wilson, and FDR each deserve a separate article showing how they could not have harmed America more had they been foreign born enemies working openly to destroy America. We are told that the Constitution is the ultimate law of the land, and yet the actions of these three men proved the lawlessness of the office of the presidency and the uselessness of Congress and the Supreme Court in the task of checking and balancing government.
Finally, some people will point to Abraham Lincoln as the killer of the Constitution. And it is true that the man responsible for the unneeded death of more Americans than anyone in history also trampled the Constitution in his quest for power, but I want to take this story back a bit further.
A Continental Congress adopted the Constitution of the United States of America on September 17, 1787. Under that constitution, Congress had the power to levy “indirect” taxes. “Direct” taxes would be apportioned among the States in accordance with the census. So congress could tax imports and exports through a duty tax, but couldn’t directly tax citizens.
George Washington was elected in 1789 and in March of 1791 the whiskey tax was passed and signed by Washington, who then personally assigned the “revenue districts”. Washington’s “districts” differed as to how the amount of the tax was determined and how it was collected, therefore distillers in the East, George Washington being the largest distiller at the time, paid less than half per gallon than the small distillers in the West. Also on the frontier and in Appalachia there was very little actual money, so whiskey, tobacco and gunpowder served as universal mediums of exchange. For working people who were paid in whiskey, the tax was an income tax that the wealthy easterners did not pay. So in that dark year of 1791, with the Constitution just four years old, the very first president of the newly formed constitutional republic ignored the Constitution, broke the law, and proved that the State is a gang of thieves and nothing more.
To add a little more fuel to this fire consider some of the circumstances of the day. After the convenient crisis of the Battle of the Wabash, Washington pressed for and got passage of the Militia Act of 1792, vastly expanding his power. However rather than using his new military power in the Old Northwest Territory where the Battle of the Wabash took place and the Indian situation was still active, he marched into Pennsylvania to intimidate citizen tax protesters. Again, think about Washington’s actions carefully here. First, under Washington’s direction, agreements with the Shawnee and the Miami were tossed aside and the Ohio valley was opened to settlement. Washington stood to make huge sums of money due to his long running land schemes in the area. Then an undermanned force lead by one incompetent fool and one drunk, charged headlong into the Wabash against a seasoned, reinforced, heavily supplied, conference of the Western Confederacy representing some ten Indian tribes in addition to elements of the Council of Three Fires, the Iroquois Confederacy, the Seven Nations, the Wabash Confederacy, and the Miami Confederacy who were in the process of trying to decide how to protect their own land. The casualty rate of the Battle of the Wabash was the highest percentage ever suffered by a United States Army unit. Approximately one-quarter of the entire U.S. Army had been wiped out in a single day of battle. Congress responded by handing Washington an army and the power to act, but rather than lead his men into battle to face Little Turtle of the Miamis and Blue Jacket of the Shawnees, the great Father of His Nation and war hero of the Revolution chose to use his new military might to break up a tax protest in Pennsylvania. And to get there, Washington went the long way through the low country rather than chance the direct route through modern day West Virginia. George knew that the sharp shooting Scot-Irish of Appalachia with their Kentucky Rifles, would give him the same welcome Blue Jacket would have afforded him.
So then we must return to our original thought. When did the Constitution fail and could that failure have been avoided or can it be reversed?
At this point you would likely be expecting me to say the Constitution failed with the passage of the whiskey tax. In my opinion the unconstitutional whiskey tax was the natural result of the outrageous debt the country was facing. That along with the fact that it was the brainchild of one Alexander Hamilton who happened to be entirely in the pockets of the banks that financed the debt and the big eastern distillers who stood to gain by the elimination of their small competitors. You see, the Constitution never had a chance and was a failure when the Continental Congress came together to dump the Articles of Confederation and discuss a federal government, which was also heavily supported by Hamilton, his bankers, and Washington himself. Men like Hamilton know the State cannot be restrained anymore than water can be kept from the sea. But men like Hamilton, Teddy Roosevelt, Woodrow Wilson, FDR, LBJ, and Nixon all know that people can be fooled and the game can continue as long as the big lie is believed. The big lie that the State can be restrained.
Ben Stone
2011
The Constitution - and any so-called "legitimate" document/government - fails when one group of people assumes authority over another group of people without the latter's consent. If a person has not granted any consent to be ruled over by another, then there is no "rightful" or "lawful" legitimacy to such a claim.
If we are going to play along with such a facade and also remain logically consistent, then any person or group of people can claim rightful authority over anyone else and their claim of legitimacy would be literally and logically no different than the current "legitimate" powers. If such a claim is rejected, then the basis for rejection would be completely contradictory and hypocritical.
Again, an excellent post on so many levels...
While reading the parts concerning the whiskey tax, I couldn't help but think of the movie "Lawless", based on a true story, in which a lot of the era's air is depicted gloriously.
On top of being able to find and excellent write up about the movie on Wikipedia, which I would suggest if you are interested in the matter. Here's a link to the preview of the film:
I really enjoy how you brought forth your own answer to this question you ask at the very beginning, great piece of writing and argumentation on that level.
All for one and one for all! Namaste :)
I don't think that most people in the liberty movement believe that the Patriot Act was the first time the Constitution failed. It's just another battle to be fought.
To be fair, Ben wrote this in 2011, and his target audience was the tea party crowd that had not been as immersed in libertarian/anarchist thought as some of us have been.
excellent post - added to the #history-trail
Good article as usual. I have a feeling I will be resteeming quite a bit of your work.
I don't know the page yet, but years ago I was studying some research by a guy talking about taxation being unconstitutional, and how to be a sovereign citizen.
He had analyzed a lot of bills and there were bills that seemed to Incorporate the United States, and depending upon the actions taken by the people as to whether they signed up for something like a Social Security Card they became an ASSET belonging to that corporation.
So there were in fact TWO versions of the United States. Now I realize this is a huge statement without backing to support it. I am only working off of memory of something I read quite a few years ago. I am not stating it is true.
Yet I do think it has bearing on what you yourself write about here.
If it is true that bills and amendments to the Constitution created such an entity then indeed that would NOT work within the framework of the original constitution, however, due to the ability to amend the Constitution there are a VAST number of things that do not work within the framework of the original Constitution.
Income Tax is one of those. So if this little hint from a distant memory that I mention has merit that might be a pretty big, scary, and interesting rabbit hole to explore.
The Constitution itself was a coup by the Hamiltonian faction to escape the Articles of Confederation, because that document made it too difficult to enact their plans for an American Aristocracy as quickly as they wished without being too obvious about their intentions. There is no salvation from Great Men or ancient documents signed by dead people. But even setting that aside, Lysander Spooner was right when he said the Constitution had no authority.
Sovereign Citizen theorists imagine the dragon of The State can be made subservient again if the proper rituals are followed and the right documents are cited. Their failure is in believing government was ever a benevolent institution.
Yes, I quote Spooner frequently. Some of my personal favorite quotes come from him. I wrote a post on that just a few days ago actually.
Yes, the Sovereign Citizens still miss the point about government. Yet, it is interesting to see within the government the TWO versions of it that seem to exist.
Also you and I deciding Anarcho Capitalism is how we are going to live starting right now does not stop them from throwing us into jail, seizing our homes, etc. So while that is our desired destination (Ancap) we still have to protect ourselves from the negatives of reality/system that is around us.
We can hopefully educate more people though and every step is closer to achieving that goal.
If we were to do away with government TODAY and say Let's be Anarcho Capitalists... it'd work for you, myself, and some others, but the vast majority of the population does not have the critical thinking or awareness for it. We'd end up with the CHAOS they like to pretend Anarchy means simply because the population was not prepared to be self responsible individuals, and did not understand the Non-Aggression Principle.
So my personal goal is to attack it from the critical thinking angle. I'll try to get more people using critical thinking that they don't teach in schools and then at least more and more of them will have the necessary mental tools for the things we believe will work to actually be achievable.
It is a long term goal. I realistically think it would take several generations to be completely ready.