I. Introduction
The US Constitution is often hailed by Republicans and Libertarians alike for supposedly safeguarding individual rights and limiting the power of government. Beneath its revered facade, however, lies a system inherently authoritarian in nature. Inspired by the insights of anarchist thinkers like Lysander Spooner and Murray N. Rothbard, this essay challenges the conventional wisdom surrounding the US Constitution and other constitutions generally, arguing that they serve as instruments of coercion rather than protectors of liberty. Contrary to their purported role, all constitutions, including the esteemed US Constitution, are entrenched in principles that undermine individual sovereignty and perpetuate state authority.
II. The Socialist Constitution
First and foremost, all constitutions are socialist in nature. Even in its most basic function to provide police, courts, and infrastructure, any constitution must mandate that the state has monopolistic control over these assets. Marxist ideology specifically mentions infrastructure (roads, bridges, etc.) as being instruments of labor, and without private control of an asset, it is by definition socialist. The following is an excerpt from Marx's 1867 work Capital: A Critique of Political Economy:
In a wider sense we may include among the instruments of labour, in addition to those things that are used for directly transferring labour to its subject, and which therefore, in one way or another, serve as conductors of activity, all such objects are necessary for carrying on the labour-process. These do not enter directly into the process, but without them it is either impossible for it to take place at all, or possible only to a partial extent. Once more we find the earth to be a universal instrument of this sort, for it furnishes a locus standi to the labourer and a field of employment for his activity. Among instruments that are the result of previous labour and also belong to this class, we find workshops, canals, roads, and so forth.
According to Marx, the direct control over the instruments of labor and the means of production are only parts of the whole as to what is required for socialism to exist. The other parts are the indirect assets that are required to make the labor process possible. It is therefore easily concluded that under Marxist theory, anything provided by the state (including police, military, roads, and even law itself) is socialism by extension. This makes logical sense under Marxism, as the means of producing those assets are done so via the collective at the expense (and without the consent) of the individual. One final thing of note on this matter is that even the iconic phrase "We the people" found in the preamble of the US Constitution is from the onset establishing a collectivist identity to "promote the general welfare" over that of the individual.
III. The Authoritarian Constitution
Because the individual may not dissent to the conditions under which they are bound, this makes all constitutions (and establishments of the state itself) authoritarian. The US Constitution in particular pretends to "secure the Blessings of Liberty" with its Bill of Rights, but in actuality, it does no such thing. The three fundamental natural rights are life, liberty, and property. (See Natural Rights in Nature for a full explanation of why these are natural rights.) While the Bill of Rights says that certain aspects of life, liberty, and property are secured (e.g. freedom of speech), it does not secure those rights wholly themselves. This can easily be proven with the natural right of property. The 4th Amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This pretends to secure the natural right of property for the individual by saying that the state cannot "unreasonably" search or seize an individual's property without a warrant. While the vague use of what constitutes "reasonable" and "unreasonable" might seem to be the issue with this Amendment, the true issue is the authorization of the state to search or seize property at all. Warrants are nothing more than a piece of paper given the state's stamp of approval (much like the Constitution itself), and even with the strictest application of the spirit of the 4th Amendment, it still allows for the theft of private property without the individual's consent.
There are myriad examples of state actions that violate the spirit of the 4th Amendment while following the letter of it, but highlighting those here would be beside the point. Property rightfully belongs to the individual, and since the right to own property is not bestowed upon the individual by the state, the state has no authority to deprive the individual of it regardless of circumstance. This usurpation of property rights goes beyond just the 4th Amendment. The 5th Amendment pretends to secure all 3 natural rights by saying that no person shall "be deprived of life, liberty, or property, without due process of law..." This plainly says that as long as the state follows whatever procedures it establishes for doing so, the state has the authority to deprive people of their natural rights which the state did not grant.
A final example of this lies in Article I § 8, which says in part:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States...
While it would be easy to highlight the infamous income tax created by the 16th Amendment, it is not simply income tax that is theft. All taxation is unequivocally theft, extortion, and slavery regardless of form, function, or label (e.g. fee, license, tariff, etc.). (See What is Ta𝕏ation? for a more thorough dissection of this.) The state has no rightful claim to the property of any individuals, especially when it seizes that property under an inherent threat of violence. Any "consent" obtained by the so-called "taxpayer" (a euphemism for a victim of extortion) is done from a state of duress, and is therefore rendered totally invalid. Consent must be explicit. Any notion of "implied consent" is immediately defeated with explicit dissent. Yet should any individual express their dissent against paying taxes, they will face the state's monopoly on violence for failing to comply. Lysander Spooner put it this way in an 1867 essay entitled On Taxes:
No middle ground is possible on this subject. Either "taxation without consent is robbery," or it is not. If it is not, then any number of men, who choose, may at any time associate; call themselves a government; assume absolute authority over all weaker than themselves; plunder them at will; and kill them if they resist. If, on the other hand, taxation without consent is robbery, it necessarily follows that every man who has not consented to be taxed, has the same natural right to defend his property against a tax-gatherer, that he has to defend it against a highwayman.
The question as to the authoritarian nature of the US Constitution can no longer be under debate. The simple fact that it allows for the extortion of private property (even without the 16th Amendment) proves that the US Constitution establishes the state in a station superior to that of the individual, thereby making all individuals slaves to the state. This is not an issue of verbiage that can be corrected by amendment. This authoritarianism holds true not just for the US Constitution, but for all constitutions, as they all require the usurpation of property rights via "taxation," as the state cannot exist without it.
IV. The Corrupted Constitution
Constitutional proponents and scholars often quote Abraham Lincoln's Gettysburg Address, saying that the United States is a "government of the people, by the people, [and] for the people." This reenforces the collectivist identity of the US Constitution while simultaneously giving the collective an objectively false notion of being a legitimate stakeholder in the government apparatus. As previously mentioned, the illegitimate authority to extort property of the individual via taxation renders the individual as a slave unto the state, but there is the even more sinister issue of the invariable expansion and corruption of the state.
Compared to today's status quo, the US federal government of 1787 was exponentially smaller, but it did not take long for it to start expanding beyond its constitutional limitations. Probably the most notable early instance of this was in the 1803 Marbury v. Madison case in which the Supreme Court unanimously ruled that "a law repugnant to the constitution is void," thus granting itself the power of judicial review. At this time, the Bill of Rights had been ratified, including the 10th Amendment, which states:
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.
This ultimately means that the power of judicial review per the US Constitution falls to the States, and not to the Supreme Court. Despite this, however, Hamilton's notion of "implied powers" of the Constitution has won out on this front with minimal resistance. There were certainly dissenting voices, including that of Thomas Jefferson, who wrote in an 1820 letter to William Jarvis that:
You seem in pages 84 & 148 to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privileges of their corps. Their maxim is ‘boni judicis est ampliare jurisdictionem,’ ['It is good judgment to extend the jurisdiction'] and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective controul.
Jefferson has been proven absolutely correct in his assessment, as the Supreme Court has become the very mechanism by which the federal government has expanded its control lightyears beyond its constitutional limitations. This corruption of the US Constitution was also echoed by Murray N. Rothbard in his 1974 book Anatomy of the State:
All Americans are familiar with the process by which the construction of limits in the Constitution has been inexorably broadened over the last century. But few have been as keen as Professor Charles Black to see that the State has, in the process, largely transformed judicial review itself from a limiting device to yet another instrument for furnishing ideological legitimacy to the government's actions. For if a judicial decree of "unconstitutional" is a mighty check to government power, an implicit or explicit verdict of "constitutional" is a mighty weapon for fostering public acceptance of ever-greater government power.
Two Supreme Court cases that should be examined to highlight this corruption of constitutional limitations (of which there are numerous) are United States v. Miller (1939) and District of Columbia v. Heller (2008). The Miller case was a challenge to the National Firearms Act of 1934 in an attempt to have the Supreme Court rule the Act unconstitutional on grounds that it violated the plain language of the 2nd Amendment (which it objectively does). After all, according to Marbury, "a law repugnant to the constitution is void." The Supreme Court instead ruled that regulating short-barrel shotguns did not violate the 2nd Amendment, saying (emphasis added):
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.
The Heller case is often cited as a win for 2nd Amendment advocates; however, there is one major issue often overlooked in Justice Antonin Scalia's majority opinion that directly ties to the Miller opinion (emphasis added):
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
Justice Scalia is saying here that the decision of the Miller case cannot be read to the letter, as this would render the regulation (and subsequent de facto ban) of select-fire weapons as unconstitutional, and thus the Supreme Court must add additional interpretation to the Miller decision. This ultimately proves the points of both Rothbard and Jefferson.
V. The Ineffective Constitution
If the US Constitution was legitimately intended to be an instrument designed to protect individual liberty, the aforementioned paragraphs ultimately prove that it has been utterly ineffective at doing so. Examining again the 2nd Amendment, despite the objectively plain language of "the right of the people to keep and bear Arms, shall not be infringed," copious amounts of gun control exists on both the federal and state law books. While conservatives and libertarians will often correctly posit that every gun law is an infringement, this unified voice has done exactly zero to keep the various American governments in check. As previously mentioned, the US Supreme Court has ensured that its decisions uphold such gun control measures, though it does occasionally give a few crumbs to the peasantry as "wins" (e.g. Heller) to quell their hunger.
Even if the Supreme Court had pure motives to uphold the spirit of the US Constitution, it is still part of the same entity that is guilty of oppressing the individuals. A conflict of interest arises from the state's perspective in this regard, as any branch, department, agency, or other entity has a fiduciary duty only to the state itself, and not to the individual. This would likewise be the case should the subordinate States have some sort of a check against the federal government. If a benevolent state were to exist that strove to protect the people's interest, because the state at any level is by its very nature a collective, only collective interests could be preserved. The individual would not be able to dissent against a decision should they disagree with it. Again in Rothbard's Anatomy of the State, he puts it thusly:
If, indeed, a subordinate interest should rightfully have a veto over matters concerning it, then why stop with the states? Why not place veto power in counties, cities, wards? Furthermore, interests are not only sectional, they are also occupational, social, etc. What of bakers or taxi drivers or any other occupation? Should they not be permitted a veto power over their own lives? This brings us to the important point that the nullification theory confines its checks to agencies of government itself. Let us not forget that federal and state governments, and their respective branches, are still states, are still guided by their own state interests rather than by the interests of the private citizens. What is to prevent the Calhoun system from working in reverse, with states tyrannizing over their citizens and only vetoing the federal government when it tries to intervene to stop that state tyranny? Or for states to acquiesce in federal tyranny? What is to prevent federal and state governments from forming mutually profitable alliances for the joint exploitation of the citizenry? And even if the private occupational groupings were to be given some form of "functional" representation in government, what is to prevent them from using the State to gain subsidies and other special privileges for themselves or from imposing compulsory cartels on their own members?
To answer all of Rothbard's questions in a single word: Nothing.
VI. Conclusion
The US Constitution is not a sacrosanct document worthy of praise. While it is entirely possible (and even likely to an extent) that the framers of the US Constitution were pure in their intentions of preserving liberty, the instrument they created has either failed spectacularly, or is working as designed. Many will retort saying that the Constitution has not failed, but rather "We the people" have failed the Constitution. This, however, only reinforces the collectivist identity over that of the individual.
The government established by the US Constitution was not explicitly agreed to by any person currently living, yet every single person within the boundaries of the United States is still subject to that government. The only individuals who explicitly consented to being subject to the US Constitution were the 39 delegates who signed it in Philadelphia on September 17, 1787, and those delegates of the state legislatures who voted in favor of ratification. Everyone else either explicitly dissented, or was unable to explicitly consent or dissent.
If any constitution, whether the US Constitution, the Constitution of a US State, the Constitution of another nation, or even a hypothetical Constitution not yet written, is to be viewed as anything, it should be viewed as a contract requiring the explicit consent of those voluntarily agreeing to be subject to its terms. Forcing dissenters to be subject to its terms is antithetical to liberty regardless of what is contained within the pages of the constitution in question. The forced subjugation of any individual who does not explicitly consent to the terms is by its very definition tyranny. Lysander Spooner put it this way in his 1870 work No Treason No. VI. The Constitution of No Authority:
Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. 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.
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