Thursday, April 30, 2009

Why America Has a Constitution

"The Constitution is not a living document. It's a dead document." (Justice Antonin Scalia on "60 Minutes") He means, of course, that the Constitution is a written document with real meaning, not a figment of our imagination.

Here are my comments on the superb essay below by Thomas Patric Burke, a constitutional scholar: Thomas Jefferson -- God, we could use another one of him -- understood that if the "right" were perceived to come from the government that the government could take them away. (Obama and others believe they come from them). "Endowed by the Creator" (and define Him -- or Her -- as you will) means they are part of our nature as being "created" (natural) beings and can't be taken away. People like John Jay (who told Geo. Washington the President must be a "natural born citizen") were so much more thoughtful and informed than most of our current political leaders. They were not politically correct. They were so much better than that. When absolutely necessary, the Constitution can be amended. Otherwise, it should be left alone

Notes from Wynnewood Institute (Pennsylvania)
April 21, 2009

Why Do We Have a Constitution?

Why do we have a Constitution? What is the purpose of constitutional government? Many people seem to believe that its purpose is merely to ensure that the business of the country is taken care of in an orderly way. On this view, what the Constitution produces is order.

But to produce order in a society, a constitution is not necessary. The nations of Europe were highly ordered societies, by some measures even excessively ordered, long before the introduction of constitutions, which first took place on the continent only during the nineteenth century.

In the case of the United States, many believe the reason for having a constitution was to unify the Thirteen Colonies into a single nation. But again many nations have been created or unified in the course of history without benefit of a constitution. The countries of Europe were unified either by force or by simple political agreement.

Historically the reason for having a Constitution has been to limit the power of government. Without a constitution the power of government is unlimited. The kings of England were absolute monarchs until William and Mary accepted the constitutional subordination of royal power to parliament in 1689.

Throughout Europe rulers had absolute power until the movement for constitutional government was initiated by a series of revolutions beginning in 1848. In every case, the reason for establishing a constitution was to replace the existing absolute power of government with limited power that respected the natural rights and natural freedom of individuals.

This was also the purpose of the American Constitution, as it was of the individual colonial constitutions that preceded it.

A move to enlarge the powers of government is therefore always a move against the Constitution -- not only against the particular existing constitution but against the very idea and purpose of constitutional government.

This is why those who wish to increase the power of government over its citizens prefer not to have a constitution. If they are forced by circumstances to have one, they prefer to have one that is "living" and therefore pliable to their schemes. But paradoxically a "living" constitution is a dead one.

When with this in mind we examine what the Federal Government has done in its current effort to remake the economy, it is seems evident that the immense powers it has arrogated to itself represent a fundamental attack on the very principle of constitutional government. If we wish to maintain our Constitution, that can only be done by insisting that there are some things the Federal Government and its agencies cannot do.

A first requirement is respect for property, since property is the first protection of freedom and defense against government. A related requirement is respect for contracts. Where does the government get the right, for example, to depose the president of a corporation, even as a condition of its receiving financial aid? That is a right that belongs to its shareholders and should never be done without their voluntary consent.

After 9/11 the argument has been made by some that even the defense of the nation against militant Islam and terrorism does not justify us in taking extreme measures such as war or torture. Those who make that argument should also be prepared to agree that it applies also in the economic sphere, and even in an economic crisis the power of government should remain within strictly limited bounds.

The first task of the American president is "to preserve, protect, and defend the Constitution of the United States." That is his oath. To preserve the Constitution means to act within its limits. Even to salvage our economy, an unlimited government will be a bad bargain.

Thomas Patrick Burke

Other Wynnewood Notes and writings can be read at

Coming Wynnewood Events:Monetary Policy and the Shadow Banking System

A Seminar with Uli Kortsch, Monday, April 27, 7:30 to 9:30 p.m.

The Philosophical Basis of the Free Society: Friedrich HayekA Course with Prof. Thomas Patrick Burke
Thursdays, April 30 to June 4, 7:30 to 9.30 p.m. Six sessions.

To learn more about these events visit our website at

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