Does A Constitution Make a People Free?

September 19, 2010

by Timothy Baldwin

A universal maxim has been admitted before: a “constitution may happen to be free, and the [citizen] not”.[1] America’s founding generation understood this well, and thus, the political systems in America were founded on the notion of the consent of the governed, knowing that a constitution itself does not sufficiently guard against tyranny. Consent of the governed is a principle that involves more than just being able to vote. It has far reaching implications and conclusions which some Americans—especially those in the federal government—may not likely concede or admit, including the right to “alter or abolish” government through the individual and unilateral will of a political and societal body-politic (i.e. State).

Unfortunately, the political systems operating in America today mostly reflect the concept of statism, nationalism and popularism—all of which rarely, if ever, comport to the fundamental maxim of consent of the governed. Despite a society having a written constitution, human experience and nature confirm that most societies—especially as they become diverse, large, complex and immoral—inevitably digress into a rule by the rich, elite and powerful, who convince the masses that they are free, are being governed by their consent and are duty bound to submit to their rule. Even more unfortunately, people can make really good slaves for these Nimrods.

One of the most difficult questions societies have ever faced—and still face—is this: how do we practically bind governments to the limits we establish for the benefit of our individual society and our posterity? Human experience provides this answer: a written constitution does not contain the magical formula to restrain government. Much more is needed. Ultimately, a natural right and element must exist to provide each society with a means of securing their freedom and happiness, for virtually all human ingredients mixed together create the impossibility that a constitution will adequately restrain government. America’s 1776 generation recognized this truth and expressed it repeatedly. James Madison puts the ineffectiveness of the constitution as a practical barrier to government usurpation this way:

“[P]ower is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it…What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?”[2]

America’s own history confirms Madison’s account of mere parchment barriers. What makes the parchment even more ineffectual is when over a period of more than two centuries the societal composition completely changes its dynamic, nature and element. Constitutions are made for society—not vice versa. Thus, constitutions require certain pre-existing societal conditions for the constitution to be effective and meaningful. When society changes over hundreds of years, the constitutions governing the original society simply do not have the same meaning, application or effect upon the new society. Once society’s nature changes, getting back to a constitution’s original state is simply impossible. Political genius, Emer De Vattel, admits this much in his famous volume, The Law of Nations (which was used as legal authority by founding fathers such as Patrick Henry). He says concerning the use of constitutions:

“The perfection of a state, and its aptitude to attain the ENDS OF SOCIETY, must then depend on its constitution: consequently the most important concern of a nation that forms a political society, and its first and most essential duty towards itself, is to CHOOSE THE BEST CONSTITUTION POSSIBLE, and that MOST SUITABLE TO ITS CIRCUMSTANCES. When it makes this choice, it lays the foundation of its own PRESERVATION, SAFETY, PERFECTION, AND HAPPINESS: — it cannot take too much care in placing these on a solid basis.”[3]

As noted by Vattel, there are a few key ingredients that must exist regarding the making or unmaking of a constitution: (1) the ends or purpose of society, (2) the choice (i.e. consent) of each generation;[4] (3) the circumstances of society, and (4) the natural laws of “preservation, safety, perfection and happiness”. When any one of these elements is missing, the constitution will have little bearing on government operation, and circumstances would require the various societies to form new constitutions, political associations and unions.

Despite the claims of some well-meaning Americans today, the United States Constitution was not intended and could never have been fathomed to be suitable for all people and all times. One of the founders said that the U.S. Constitution was founded for a “moral and religious people. It is wholly inadequate to the government of any other.” Of course by “moral and religious”, John Adams most definitely meant Christian morals and the Christian religion, for Adams said on another occasion:

“The general principles on which the fathers achieved independence were…the general principles of Christianity…I will avow that I then believed, and now believe that those general principles of Christianity are as eternal and immutable as the existence and attributes of God; and that those principles of liberty are as unalterable as human nature.”[5]

That a constitution could be ratified hundreds of years ago for all people and all times clearly contradicts not only human nature, natural law and human experience, but also the understood political maxims of the 1770s and 1780s. It is for this reason that the United States cannot “spread democracy” across the world by military force. As Vattel says, constitutions are formed for particular societal circumstances, lest freedom should suffer and government gain too strong a hold on individuals and society. How can an objective student look at the circumstances of 1787 America compared to 2010 America and propose that the founding generation would have formed the union that exists today under the current constitution? Even the 1787 constitution in its theoretical, experimental, abuses-yet-discovered form barely mustered the approval of a small majority in the 1787 constitutional convention. Had some of the societal circumstances slightly changed, the U.S. Constitution would have never been ratified.

There was much and serious opposition to the U.S. Constitution even in 1787 and that was with only thirteen societies totaling only 3.5 million people whose beliefs, morals and philosophy were largely mirrored, considering their common ancestry, language and custom; their shared Christian religion; their shared opposition to Great Britain; the sparsely-populated States; and their mainly-agricultural way of life,[6] to name a few. Serious opposition to the U.S. Constitution existed even when the federal government was considered much weaker than the States; the federal government’s purposes were expressly limited; there was no technology which allowed the federal government to look at the freckles on your face from a satellite in space; war-drones could not fight for the federal government against the States from an unknown, private room half way across the world by remote control; the federal government could not through a machine pinpoint the location of a firearm being shot from 200 miles away, detecting the caliber and number of shots fired; each State possessed an active militia that outnumbered the federal government’s standing army and possessed comparable weaponry; the people felt that the States should retain to themselves the vast bulk of governmental responsibility; and so on. Do studious Americans honestly believe that the founding generation would have not heeded the warnings of statesmen such as Patrick Henry and Samuel Adams not to form one centralized government with the powers granted to it by the U.S. Constitution had their society existed then as it does now?

Indeed the circumstances of America in 2010 require a reforming of the union (and perhaps even some of the States), just as Patrick Henry—among other statesmen—proposed in 1787. The purpose of a constitution, political unions and government formation is for the “preservation, safety, perfection, and happiness” of the people, as Vattel states, as well as the U.S. Declaration of Independence. The U.S. Constitution as applied today undermines the very purpose of society forming unions and government—especially the society of 1787. In similarity to the British Constitution of 1776 and how the colonies ultimately viewed it, the U.S. Constitution today only perpetuates the power and control of the federal government over the sovereignty of the States and the lives of hundreds of millions in America—even across the world. There would not be one knowledgeable person today who would deny that the union as formed in 1787 no more exists in 2010 and that America’s societies today in no way reflect the societies forming the U.S. Constitution. So how can we not see the serious error in positing that the people in 2010 are bound to remain in the union formed in 1787 by people who have been dead for over two hundred years when the circumstances in which the constitution was ratified have not existed for over one hundred and fifty years?

Revering a constitution over the natural freedoms, liberties and rights is simply wrong. Beholding the image of an idea at the exclusion of the substance of life distorts common sense. Focusing on what once was to the exclusion of what should be shirks our duty to fellow-man and posterity. Even the founding generation only held on to their British Constitution for approximately ten years after more serious conflict arose between Great Britain and the colonies. Was their plight direr than ours today? Many would say no. While they loved the rights and principles forming the British constitution (which took literally hundreds of years, the deaths of thousands and the arduous labor of millions), they also realized that the British Constitution did nothing more for them than keep them connected to a political system which they deemed harmful to those revered rights. Their view of a constitution reflects more of the description given by Vattel:

“This constitution is in fact NOTHING MORE THAN the establishment of the order in which a nation proposes to labour in common for OBTAINING THOSE ADVANTAGES with a view to which the political society was established.”[7]

Clearly, when the execution and application of a constitution distorts and twists the “establishment of the order” and no longer obtains the “advantages” for which the constitution was established, then the parchment of the constitution no longer serves its purpose. This ineffectuality reflects a bigger problem of society, which can never be resolved through the force of government nor through the perpetual union of the same societies attributing to the demoralization of the constitution’s ineffectiveness. Upon such a happening, the constitution “is in fact nothing more than the [continuation] of the order…for [forcing] those [dis]advantages” against society.

At some point, separation is required and is necessary to reform political society, unions and constitutions for the peace, happiness and safety of the people composing those political systems. This position has been recently confirmed by the United States federal government. Regarding the Federal Republic of Sudan, the U.S. federal government has taken the political position that Southern Sudan has the right to and should secede from the constitutional republic of Sudan and to become an independent State. The federal government has taken this position despite the fact that the Sudan Constitution claims to be united, establishes its own supremacy and expressly provides for a constitutional amendment process, among other similar U.S.-Constitution-provisions which some in America use to argue that no State in America has a right to secede from the constitution and thus union. Secretary of State, Hillary Rodham Clinton, expressed that the “United States must figure out how to convince political leaders in Khartoum that it’s ‘worth their while to peacefully accept an independent south [Sudan]’.”[8]

Interestingly, when it comes to the States’ seceding from the existing American union, all of a sudden, the federal government is ready and willing to kill the persons making such an attempt. So, who decides when a right of secession exists?—the federal government or one branch—the judiciary—of the federal government!? Why is it good for South Sudan to secede but not good for the States? Who decides when it is good?—the federal government or the people of the States?! Who draws the line of difference between (unlawful) sedition and (righteous) insurrection?—the U.S. Supreme Court?!

Despite the growing acknowledgement among Americans that the political system of the current United States union is irretrievably broken to restore it to its original form of 1787, some still refuse to recognize a re-forming of the union—via secession—to be a viable answer of our plight. These naysayers emotionally attach this reason for perpetual union: “America is the greatest nation in the world. Our constitution is the best in the world. Without the U.S. Constitution, we will no longer be free”, and so on. This simply reflects ignorance and shallow-thinking. It is not good enough and is flawed logic. Real reasoning and political science must be studied and analyzed for true freedom to flourish in the American States once again. Once a true understanding illuminates the minds of freedom-loving, self-governing, responsible Americans, the necessary and appropriate steps can be taken to restore freedom in societies.

Copyright (c) Timothy Baldwin, 2010

[1] Charles de Baron Montesquieu and Julian Hawthorne, ed., The Spirit of Laws: The World’s Great Classics, vol. 1 (London: The London Press) 183.

[2] James Madison, Federalist Paper 48.

[3] Vattel, The Law of Nations, Book 1, Ch. 3, Sec. 28 (emphasis added).

[4] That each generation has a choice of what constitution to form, alter or abolish for itself is inherent in the meaning of “consent of the governed.”

[5] Charles Francis Adams, The Works of John Adams, Second President of the United States, vol. 10. (Boston Little, Brown, 1856), 45-46.

[6] “With equal pleasure I have as often taken notice that Providence has been pleased to give this one connected country to one united people–a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.” John Jay, Federalist Paper 2 (emphasis added).

[7] Vattel, The Law of Nations, Book 1, Ch. 3, Sec. 27 (emphasis added).

[8] Author Unknown, U.S. Eyes Secession To Keep Peace In Sudan

Clinton: North, South Need To Yield, Washington Times, September 8, 2010, found at