Contradictions in the U. S. Constitution

Posted by $ MikeMarotta 10 years, 8 months ago to Politics
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Should the government maintain post roads or post offices? They may well need their OWN couriers and dispatches, of course, but it is a BASIC CONTRADICTION in the Constitution that granting some power to Congress suddenly creates a government monopoly in what should be an open market. Let there be government offices for sending correspondences to and from the government, if that is needed, but why does everyone else lose the right to carry mail?

At the end of Atlas Shrugged (pages 1083-1084 ppb) after John Galt has been rescued, we see scenes of life returning to normal as the producers take up the task of rebuilding the world. To Richard Halley's music in the deep background, Midas Mulligan is planning investments; Kay Ludlow studies shades of film make-up while Ragnar Danneskjold reads Aristotle; Ellis Wyatt, Hank Rearden, and Francisco d'Anconia discuss smelters. Judge Narragansett is in his library.

"He sat at a table, and the light of his lamp fell on the copy of an ancient document. He had marked and crossed out the contradictions in its statements that had once been the cause of its destruction. He was now adding a new clause to its pages: 'Congress shall make no law abridging the freedom of production and trade...'" Beyond that, Ayn Rand was not specific about the contradictions in the Constitution.

Nothing in the federal Constitution actually applied directly to the States, except in the demarcation of proper powers. In other words, until 1990 you had NO FREEDOM OF RELIGION at the state level. Massachusetts collected taxes for the Congregational Church until 1839. Other states prohibited atheists from voting, serving on juries, being witnesses in court, or running for office. You could be TORTURED FOR A CONFESSION BY A LOCAL GOVERNMENT - and many people were legally tortured until Brown v. Mississippi, 297 U.S. 278, (1936) incorporated the Fifth and Eighth Amendments to the States. Perhaps it would have been NON-CONTRADICTORY for the Bill of Rights to apply to everyone within every state, rather than just limiting the powers of the federal government.

The Income Tax, was a valid amendment, though not in the original document, of course. Also not in the original were the abolition of the Poll Tax, voting rights for 18-year olds, or moving the Inauguration to the 20th of January. Clearly, the amendment process must be accepted and it would be a contradiction for the Supreme Court to declare an amendment unconstitutional. Just as the Constitution has an amendment process, does it need a nullification clause to ensure non-contradiction of its basic principles?

Should we even have a legal voting age, but no poll tax? Having the tax without an age limit might be more capitalistic, more of an objective measure of a person's having earned the right to vote with care, concern, and intelligence.

Should the government set weights and measures? As weights and measures are fundamental to contract law, it would seem so. But nothing prevents you from having your own set, or from the general market ignoring the government, as we still use the English system in a nation legally on the Metric system. Industrial goods of many kinds come in many dimensions not defined by law; and yet, nothing falls down or collapses, no work grinds to a halt for the lack of a compatible fastener. So, why does the government need to define weights and measures?

Why does the government coin money? I understand and I assert that as an economic entity the government does have the factual need to create its own money objects. But we all do. Again, what makes a "dollar" may seem to be a matter of law, but many of the states legally defined the values of various coins according to local conditions. This was not any more objective than the Federal government doing it, but the point is that we did not need federally-mandated coinages. It would be fine as a matter of law, for example, for Congress to say that in paying taxes, the government accepts these and those coins and currencies at given rates of exchange. The US Mint published such tables occasionally in the early 19th century, showing the nominal and market rates of the Brazilian Joe, English Pound, and so on.

The constitutionality of the first and second Bank of the United States was an issue of the time. We can see the matter from several sides. But if the government - like any other entity - cannot establish its own bank, then it must deposit public funds in SOME bank -- and that creates the opening for the "pet banks" favored by President Andrew Jackson. Perhaps the Constitution should have defined a specific banking agency - or perhaps such a thing should have been expressly forbidden. I have no answer. Perhaps Judge Narragansett knew...


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  • Posted by $ Tap2Golf 10 years, 8 months ago
    The US Post Office. I find this extremely interesting and timely. I cannot say exactly when the govt took over the management of mail delivery, in my lifetime it has always been that way. I always liked getting the mail each day and reading personal letters. I never minded buying stamps to place on my outgoing mail. It was mostly a pleasant part of life. Fast forward...I could pull out my mailbox and be a lot happier today. The box is 99% filled daily with coupon flyers, political solicitations, offers to reduce my mortgage rate (which I don't have) and other junk mail. I still have to take the time to look through each sheet and envelope to make sure there isn't a stray bill or party invitation stuck between the trash. I notice occasionally that envelopes are stamped with a plea to "support the PO, buy stamps. So I buy a sheet of forever stamps about every 2 years. I refuse to wait in line to mail a package that won't fit into the package box next to the automated self-serve station at the PO. So I send that stuff FEDEX or UPS. I can do that at the cute and friendly gift shop in town. NOPE. With apologies to my mailman, Tom, the govt should put Post Offices in the Spending Cuts column. No reason I can see for holding on to another Loser. For myself, I would relish my new free time and gladly eat the cost of the forever stamps I have left. End of comment to the 1st paragraph.

    2nd and 3rd paragraphs: Were it only so.
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    • Posted by j_IR1776wg 10 years, 8 months ago
      Article I, Section 8, Clause 7 of the United States Constitution, known as the Postal Clause or the Postal Power, empowers Congress "To establish Post Offices and post Roads". via Wiki

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  • Posted by khalling 10 years, 8 months ago
    A lot of questions here. First of all the US Constitution did not prohibit other mail services, what it did was allow the federal government to setup a mail service. The same goes for post roads. But I would agree with Rand that the government should not be in this business. Federal Express and UPS prove we do not need a government mail system and many private toll roads were established in this country, particularly in the early middle 1800s, proving we don’t need government in this business either.

    “Nothing in the federal Constitution actually applied directly to the States, except in the demarcation of proper powers.” This is not quite true. For instance, one of the main purposes of the Constitution was to eliminate state tariffs. This is the Interstate Commerce clause. But also the Constitution limited states from declaring war or engaging in foreign policy. The Obama administration used this argument to sue Arizona over their illegal immigrant arrest policy.

    Most of the Bill of Rights were commonly accepted under common law and were not considered necessary to impose on the states. However, a requirement that the states not violate the Natural Rights of their citizens would have made things more consistent.

    There is no valid argument for an income tax. On top of that the income tax is inconsistent with the 1st amendment, 4th amendment, and 5th amendment. Only a non-coercive tax system is consistent with Natural Rights. Rand and others have proposed several non-coercive tax systems. Until the income tax the federal government was mainly funded by import duties. While these were manipulated for political purposes, see Carnegie, this is close to a non-coercive tax. However, you can never support a welfare or military state on these non-coercive taxes.

    Inauguration day are procedural laws. The only valid reason for procedural laws is to help protect Natural Rights, but they are not fundamental rights. As a result, I don’t think they represent real flaws in the Constitution.

    I agree government should not be in the business of weights and measures. As you point out it should be a contractual matter. The same can be said about coining money. But more important are legal tender laws. Note that the first legal tender law was considered unconstitutional. The president packed the court to get the result he wanted and now they are considered constitutional. Legal tender laws are much more important than the Federal Reserve in allowing the government to steal from its citizens.

    The 1st and 2nd National Banks were actually private banks in which the federal government had an ownership interest. They were not a central bank (federal reserve). The constitutionality is, I think, debatable. However, a small federal government that stuck to protecting natural rights would not be able to significantly manipulate the banking industry, since it would not be holding large reserves compared to the private sector.
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    • Posted by $ 10 years, 8 months ago
      Thanks, D.K. We are on the same page, but we have some disconnects. Perhaps I just was not clear enough in my wording.

      "First of all the US Constitution did not prohibit other mail services, what it did was allow the federal government to setup a mail service."

      No, not at all. That is the point. Once Congress has a certain power, no one else does, for instance to make foreign treaties or declare war or coin money or operate post offices. Why do you think that UPS, FedEx, etc., do not carry first class mail? Do you know the story of Lysander Spooner? (See Wikipedia.)

      A contradiction in the Constitution is not clarifying those things which the government is allowed to do (print a journal of Congressional minutes) from those things which ONLY the government is allowed to do.

      The "daily journal" of Congress is another example. Private reporters always issued such publications. In our time, such private legislative reports pioneered computerized access, ahead of the Library of Congress's THOMAS System. It would be contrary to the intent of an open government to prohibit that. But it is not explicit as something Congress is empowered to do, but others can do, also.

      "But I would agree with Rand that the government should not be in this business."

      AFAIK Ayn Rand did not address that specific point. But we all pretty much agree on it, based on the general truths that she identified.

      - MM “Nothing in the federal Constitution actually applied directly to the States, except in the demarcation of proper powers.”
      DKH - "This is not quite true. For instance, one of the main purposes of the Constitution was to eliminate state tariffs."

      Right. I meant that, also, that the Constitution places the federal government over the states, by saying what the states cannot do, including making treaties (defining immigration), etc.

      "Inauguration day are procedural laws. ... As a result, I don’t think they represent real flaws in the Constitution."

      I only made the point that the Constitution clearly was intended to be amended as needed and the age of voting or the inauguration of the president are examples of technical adjustments. But nothing defined a "nullification" processes to prevent amendments that negate the basic principles, for instance, an amendment to establish a national church. Not just any amendment should be allowed. That was a contradiction.

      "But more important are legal tender laws. Note that the first legal tender law was considered unconstitutional."

      You might want to start a separate discussion on this. My experience as a professional numismatist is that most people are misinformed and ill-informed about "legal tender." I could be wrong. It has been known to happen.

      "The 1st and 2nd National Banks were actually private banks ... The constitutionality is, I think, debatable."

      It certainly was debated at the time!

      "However, a small federal government that stuck to protecting natural rights would not be able to significantly manipulate the banking industry..."

      That was a debating point in those times because of the size of the government relative to any other enterprise. Joint stock companies were rare - Adam Smith was against them: capital should come from savings (also an Austrian assertion). But today, that would be different considering the sizes of private firms. My concern, however, was more philosophical. In other words, should the government conduct all of its business only through the Treasury? It needs to buy equipment and services. A bank is just a convenience for that.... or maybe not...
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      • Posted by khalling 10 years, 8 months ago
        "A contradiction in the Constitution is not clarifying those things which the government is allowed to do (print a journal of Congressional minutes) from those things which ONLY the government is allowed to do. "
        agreed. very interesting discussion on the flaws in the Constitution. and we haven't even discussed the 3/5ths of a person! Also, other clauses that have caused problems, such as interstate commerce, the necessary and proper clause (sec.1 clause 8), declarations of war/head of military (starting with Barbary pirates).
        On toll roads and coins (Congress passed no law nor tried to stop until much later):
        http://www.fee.org/the_freeman/detail/pr... Toll roads

        http://www.fee.org/the_freeman/detail/pr... coins

        The federal govt needs to be able to at least take advantage of an exchange bank to do basic business. It would be absurd and inefficient otherwise.
        I have already done a post from my husband's blog on Central Banks, Fractional Reserve Banking and legal tender laws. They're in here somewhere....
        As well, he has written what he calls the Regulatory Bill of Rights.
        http://hallingblog.com/regulatory-bill-o...
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        • Posted by $ 10 years, 8 months ago
          I had some quibbles with the article on coinage, but largely, it was a nice summary, and I voted thumbs up. Your husband's work was very interesting. I happen to hold a certification in "Transportation and Traffic Management" which had nothing to do with streets and roads and everything to do with Interstate Commerce Commission regulations. It was painful, believe me, but my first wife got me through it. Just to say, your husband should send out a zillion emails to FEE, CATO, etc., (if he has not already) linking to his blog on this.

          Mostly we are in agreement, as is to be expected. I will post my quibbles as new topics later.
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  • Posted by $ 10 years, 8 months ago
    As noted in the "Financing" discussion, according to Ayn Rand, you are not entitled to all government services free of charge, not even the proper powers of police and courts. So, the Seventh Amendment, which guarantees a jury trial for suits over $20 in value would seem to be a contradiction to be removed.
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