(Editor’s Note: This is an update of an article that ran at LewRockwell.com in October 2009.)
The US Constitution is a dead document. It has been dead nearly from its inception. It is neither contract nor treaty, either of which would give it the force of law. It does not, and cannot bind any two persons to each other, nor can it bind any person to the rogue government called “The United States of America” that is the occupying force in Washington DC.
In this article, I will prove that the Constitution is without authority and that the subject of secession related to the Constitution is entirely irrelevant, and that any states need not concern themselves with the constitutionality of secession.
When you are able to wrap your mind around this truth, it may cause you some consternation. This means that all of the things that you learned about the US Constitution in elementary school, high school government class, college and any information you’ve learned since you became an adult…IS WRONG. If you went to law school and took Constitutional Law classes, they lied to you.
Please don’t misunderstand. I’m not saying that all of the debates that are made about the details of the Constitution are in error. We can all spend our days arguing about the articles and clauses and their meanings. But if the US Constitution is dead, and cannot bind anyone to it, arguing about the merits of constitutionality of any government action is simply an exercise in re-arranging the deck chairs on the Titanic.
A constitution, or any document organizing a government, must have authority and validity. But the US Constitution has no inherent authority or validity and has never had either. If we can learn what the US Constitution is and what it is not, we can understand the flaws in the old constitution and then craft a new constitution for any seceding state with authority and validity.
I believe that one of the major reasons that Washington is able to operate as it does, outside the strictures of the Constitution, is because those persons in power know that the Constitution is not legally enforceable. Absent a restraining legal document coupled with principals that have the power to enforce the terms of the document, the DC criminals do exactly what they wish and what they can get away with.
The US Constitution has the following words in its Preamble, showing the intent of the Framers:
We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the united States of America.
The Founder’s sentiments seek to secure blessings to themselves and their posterity, meaning future generation of citizens. But a loose agreement cannot by law or reason bind any future person to its details. Contracts cannot obligate persons who will live in the future, either. They can only obligate persons who are living presently and who sign and receive the contract.
Even though the old constitution wishes to bestow blessings and liberty on their posterity, it has no power whatsoever to achieve this goal. Further, it never showed any intention toward future generations other than to offer useful recommendations to their posterity toward the blessings of liberty. If they were in some way able to bind future generations to the Constitution, they would not have bestowed liberty but slavery upon their posterity, since their children would be bound to it from birth, like it or not.
So what exactly is this Constitution?
I think it could only be called a “loose agreement” between certain people at the time that it was written and ratified. It is not a treaty ratified between sovereign states, which would have the weight of law. It cannot be considered a legal contract, since legal contracts have characteristics that the old constitution does not have.
It was ratified by votes in the several states. But ratification in any form didn’t turn it into a legal document with enforceability and authority.
The US Constitution is not a legal contract. The Constitution never bound any two or more parties in a legal way, nor did it ever purport to bind anyone. A timeless principle in contract law is that the contract is not valid until the contract is signed by all parties and delivered to the parties, or the representative of any signatory party. Any party may refuse to sign or deliver a written instrument and thus invalidate the contract. The US Constitution was not signed by anyone or anyone’s legal representative. It was not delivered to anyone or their representative. No one in the USA, either alive or dead, has ever signed the Constitution as a legal contract between parties. So how could it be a legal document with binding authority or validity?
Contracts are also voluntary. The parties come together for a purpose, but are free to dissolve the contract based upon the terms of the contract. Even if they leave contrary to the contract terms, there may be consequences, but they can still leave.
Abraham Lincoln’s position was that, once in the Union, no state can ever leave. And if the US Constitution was an enforceable contract between parties, his position would have been rejected instantly and laughed out of any court in the land. But in light of the unenforceable nature of the Constitution, Lincoln was free to do what he pleased as it related to the Confederate States of America and war. But the Confederate states were also right to secede from a Union that could not bind them. Constitutionality was irrelevant then, just as it is today.
The Constitution is not a perpetual corporation. The perpetuity of a corporation would require that new members voluntarily assent to its laws and by-laws as old members die off. New members must accept in writing because without their legal signatures, they would not be members and could not vote on corporate issues. There is no evidence whatsoever that the Framers intended the US Constitution to be a corporation’s organizational document…at least not a corporation in the strictest sense.
“The United States of America” is the name given in the US Constitution to the organization that the states created. Compare the work of the Founders to a group of thirteen property owners that need a management company to manage their properties. So, they created a management company and gave it specific tasks and responsibilities. The property owners retained to themselves all other powers not specifically delegated to the management company. They also did not transfer ownership of their properties to the manager. The owners remained the sovereign principals, controlling the manager. But there is NOT ONE WORD in the US Constitution that purports to create a new nation. Look for yourself.
So we can see that the Constitution is not a contract. It binds no one, and never did bind any persons. We see that all those who pretend to operate under its perceived authority act without any legal and legitimate authority.
But we voted and elected these Representatives and Senators. They are our duly elected officials, aren’t they?
Are our elected representatives our personal agents with legal authority to bind each of us individually and collectively? No they are not. In order for you to have a legal representative, you must sign your name to a document that gives the representative the power to act in your behalf. This document is commonly known as a “power of attorney.” You must also deliver the document to the agent.
People regularly sign a “power of attorney” for health care decisions and other legal matters. But what would you do if a stranger went to your doctor and usurped your wishes for your medical treatment, stating that he had your power of attorney? Any reasonable person would require the stranger to produce a written document bearing your signature prior to any changes of treatment. How much more should there be a written power of attorney for the DC stranger who plunders your income and steals your liberty?
Did you ever sign a power of attorney so that any elected officeholder could make binding decisions on your behalf? Did you authorize any person to obligate you to laws, regulations or the payment of taxes to any governmental body? I know that I have not done so. Neither have you.
And the secret ballot makes the concept of any elected representative acting as your agent even more ridiculous. How could secret voters hire an agent? How could secret voters enter into a power of attorney agreement?
So we see that those persons acting as our elected representatives are acting unlawfully, and that we have both the right and duty to treat them as usurpers and frauds.
Then upon what authority does the Federal Government operate? Who gave them the authority to enact laws, tax, confiscate men’s property and kill other men who resist their machinations?
You could say that voters select their representatives by secret ballot, and so bestow authority upon them. But in matter of law and reason, this is not true. It would not be upheld in a court of common law. If you and three of your friends voted in favor of a proposal in which a fourth friend would take it upon himself to deprive me of my property or my life, he would be a robber and/or a murderer. If he presented himself at my door to do his work, he would be unable to produce any legal authority to complete his task. Absent legal authority, I should treat him as a robber and murderer and resist his efforts even unto deadly force.
In a courtroom, a judge would ask to see your representative’s written authority to act in your behalf. You would be unable to produce such written authority.
So voting is neither a contract nor a power of attorney. And secret ballots should never be considered legally binding, since no signed contract between parties ever existed. Further, if voters authorize another person to act as their agent, they should do so in an open manner so to accept responsibility for the agent’s acts. That’s called “liability,” and that’s what happens out here in “the real world.” But the US Constitution, in Article I, Sec. 6, says that “for any speech or debate (or vote) in either house, they (Senators or Representatives) shall not be questioned in any other place.” So your agent cannot be held responsible for any laws they make…and neither can you. So, if no one is responsible, who is responsible?
And let’s return to the subject of legal authority. The Constitution has no legal authority to bind any two or more persons. If it did, you would possess a copy upon which you would find your own signature and at least one other person’s signature. But that document does not exist in any form and has not existed in over 235 years. So, absent that authority, voting is only theater. It is an exercise that makes the citizen feel that he is participating in a legitimate government.
The Federal Government in Washington has been illegitimate from its origin. There is no enforceable law or principal possessing superior force to restrain it from any act. It was only the morality and ethics of the earliest founders that restrained them from tyranny. Unfortunately for Americans, that morality and ethical restraint are a quaint memory.
OK. Convinced that the old Constitution is a cruel joke? Then, how can the new constitution be crafted to guarantee legitimacy and legality? If the framers of the new constitution write one like the old one, it will suffer the same illegitimacy issues as the old one.
Here are suggestions on how to write a new Constitution for a seceding State that wants to become a new sovereign nation.
The New Corporate Style of Governance
Form the new nation in the style of a corporation. Let’s call it State Inc. The Constitution can be its laws and by-laws. Each person will be given the option to subscribe to State Inc. and become a citizen. That person would have to be presented with a copy of the Constitution. Each person would have the choice to accept the Constitution in writing. Once accepted, each citizen would be, in essence, a shareholder in the corporation, since a person could not be a citizen/shareholder without signed consent. Each citizen would pay one once of .999 purity silver and would be issued one share of common stock with one vote. No citizen could buy or own more than one share of common stock. That would also mean that those rejecting the constitution could not be citizens of State Inc. Minors could not be citizens until they were of legal age to enter into a contract, usually eighteen years of age.
State Inc. might also issue preferred stock. The shareholder/citizens could actually invest their own money in preferred stock. This would provide the new nation with capital. Shareholders holding preferred stock might receive dividends if State Inc. makes a profit.
State, Inc. would also be able to issue debentures and corporate bonds to raise capital.
As the corporate structure would be a closely-held private corporation, the charter could specify that the stock could not be resold to non-citizens. Only State Inc. would be eligible to buy back the stock to be reissued to new citizen/investors.
The founders of State Inc. would have the right to present the offer of citizenship to anyone anywhere on the planet. They could cherry pick the world for the best and brightest talent! It would be a component of immigration policy.
Voting could be done by proxies (power of attorney), and the citizen could designate an elected representative as his proxy in writing. Or he could vote himself on any issue. This creates a hybrid between direct democracy and representative democracy.
Think this is unworkable? The largest corporations on the planet have been running this way for hundreds of years. GM (pre-nationization), Exxon, Standard Oil, all of the Dow Jones top 30…they all work this way just fine. Many have millions of shareholders, just like State Inc. would have. In fact, Sweden’s Stora Kopparberg was incorporated by King Magnus Eriksson in 1347 and still operates today.
State Inc. Monetary Policy
The new constitution must have an article about monetary policy. This article will authorize the private minting of gold and silver coins, and will mandate that coins only show their purity and weight, not any monetary value.
Banking, Entity Structure and Privacy
The new constitution must contain an article about banking. Specifically, Fractional Reserve Banking must be prohibited. In addition, strict protections of privacy must be enacted, shielding citizens from the tax laws of other nations.
The new constitution must contain laws that prevent tax treaties with other nations, thereby protecting State Inc. citizens from predatory taxation by other jurisdictions. Statutes must also protect the privacy of business entities such as corporations.
The sole method of taxation that is at once most restrictive to government yet least confiscatory to individuals is the sales tax. State Inc. should establish the sales tax as the sole source of government revenue.
State Inc. must organize, train and equip a citizen militia, comprised of every able-bodied man and woman between the ages of 18 and 55. As the well-regulated militia is necessary to the security of a free State, the natural right of citizens to keep and bear arms shall not be infringed. Following the Swiss model of militia organization would be a good idea.
If the new constitution of State Inc. only had those articles about monetary policy, banking, taxation and militia, that would be sufficient to form a core government and bring State Inc. to life. Because the power of the purse and the power of the sword make all else possible. There are many details that must be worked out that are not listed in this article. But this article was not written to form a new government. It was written to get you thinking about constitutions and how they directly affect YOU.
Thomas Jefferson’s shining jewel, the Declaration of Independence, states that when a government shows a long train of abuses meant to reduce the people under absolute despotism, it is the people’s right and duty to throw off such government and provide new guards for their future security. State Incorporated could be that new guard that secures the future of a new nation.
State Incorporated. A new model for governance on the American continent. An idea whose time is come.
Secession is the Hope For Mankind. Who will be first?
DumpDC. Six Letters That Can Change History.
© Copyright 2010, Russell D. Longcore. All rights reserved. Permission to reprint in whole or in part is gladly granted, provided full credit is given.
For a wider analysis of this constitutional issue, read “No Treason,” by Lysander Spooner.