Constitutional Anarchy

Tue, Feb 1, 2011

Political Philosophy

by Attorney Timothy Baldwin
(approx. 1,000 words)

Recently, Senator Jim Shockley published an article on his reasons for not supporting Montana State Senate Bill 114 – Sheriff’s First Bill. His response brought to my mind the content of this article.

Constitutions are supposed to be formed—as well as abolished, altered or amended—based upon natural law principles, human experience and foresight. The United States’ history confirms this reality. The Constitution of the United States of America (“USC”) was in large part proposed and ratified because the States supposedly could not work together efficiently and in harmony enough for the union to effectively work. Some of the proponents of the USC (known as Federalists) were little concerned that the newly-constructed federal government would ever outweigh the States in power and function. On the other hand, opponents to the USC (known as Anti-Federalists) insistently and adamantly argued that the federal government would—eventually—outweigh the States in power, causing a harmful scenario for liberty. In either regard, however, the USC’s enactment was deemed a political response to a societal condition.

However, since 1870, many legal theorists propose that the USC is a living constitution that can change in meaning and application over time; that power and authority is relative to the circumstances of the day; that enumerated powers must evolve with condition of society; and that the arduous labor of constitutional amendments need not be utilized to correct flaws in the system. Today, it is a common notion that many lay persons hold and many politicians claim is a political truth.

Of course, these same persons use this theory to empower the federal government to the exclusion of State authority; or at least, to passively allow the federal government to perform whatever it claims the power to do. Never do they use the same theory to place power back into the hands of the States in compliance with the original meaning of the USC. Conveniently, those who hold these political and constitutional positions are strict constructionists when it comes to limiting the States but are evolutionary constructionists when it comes to empowering the federal government.

Interestingly enough, the USC was originally proposed and ratified under this stigma: those who were afraid that the federal government’s power would become too great were not to be taken too seriously and to be treated in almost a comical fashion. Anti-Federalists’ warnings regarding the federal system were subservient to Federalists’ priorities. Consider what U.S. Supreme Court Justice, Joseph Story, said in 1833 concerning the positions of some of the Anti-Federalists on this point:

“One cannot but feel, at the present time, an inclination to smile at the guarded caution of these expressions, and the hesitating avowal of the importance of the power. It affords, perhaps, one of the most striking proofs, how much the growth and prosperity of the country have outstripped the most sanguine anticipations of our most enlightened patriots.”[1]

By implication of Story’s admission, the USC was not formed as much upon human nature, the natural degradation of constitutions and the hazards of federal power but more upon the potentiality of a powerful federal government to facilitate ample amounts of wealth. Since that time, Story’s sarcasm equates more to irony now that the results of the USC have become essentially what the Anti-Federalists predicted. Still, even the Federalists held the USC to be a constitution of fixed meaning; not evolutionary or living. At least they stated with character and conviction what political maxims they believed to be true and did not hide behind metamorphosis ideology.

For one holding to the living constitution theory, how would he propose that the States regain the power they have lost over the past 200 years? How would he propose that the balance and limitations of government power be restored? Would these theorists allow, as they concede with Congress, the States to pass legislation they deem is in opposition to the USC given the political plight of the States? Would they allow the same pecuniary, discretionary and arbitrary power to rule as they concede the federal government has by virtue of whatever the U.S. Supreme Court declares? And if one would not concede that the federal government is so entitled to act, what is he to make of the union that has essentially permitted the federal government to act carte blanche? What would he think of the 1500-1800 A.D. political philosophers’ maxims that usurping power must be resisted by equal or greater opposing power?–that the peace, happiness and well-being of the State is in actuality the supreme law of the land?

If the living constitutionalist’s theory is correct, then the meaning and application of the USC cannot be used to bind the people and the States to a system damaging to their freedom when the federal government is not held to the same standard. Would one agree with Joseph Story?–that the federal government would become too powerful over the States is laughable?  Upon the living constitutionalist’s own prescription, the States must use the same living means to do as the 14th amendment requires: that no privilege or immunity be denied the people of the States, which necessarily means ensuring that the federal government not trample upon the rights of the States under the tenth amendment. However, the reality is, living constitutionalists would only admit such an evolving power to the federal government, which reveals their political hypocrisy.

The result from this constitutional absurdity is constitutional anarchy. The federal system does not operate under political maxims; it operates upon political whim. What was supposedly the original meaning of the USC is deemed outdated and impractical. Circumstances are deemed to control the meaning of the USC. Consequently, new meanings and modern circumstances determine the extent of the federal government’s power. Yet, the “true meaning” of the USC is strictly cited as a manner of restricting the States, all in the name of “adhering to the USC”. The constitutional standard is duplicity and is driven by whatever outcome a politician desires, depending on his ideology or worse, his own interest. But somehow we are supposed to believe that politicians practicing such beliefs actually understand what freedom is and care about actively preserving it.

It thus becomes very convenient (or really, surreptitious) for those in political positions to shirk their duty by referring to the USC’s original meaning not to do what they are supposed to and referring to the modern-living constitution to do what they are not supposed to. It is no wonder that the only direction that seems to gain any momentum in the United States of America is the unstoppable slide down the muddy slopes of tyranny and oppression—the claim of loving freedom and constitutional government notwithstanding.

[1] Joseph Story, Commentaries on the Constitution of the United States of America, Vol. 3 of 3, (Boston, MA, Hilliard, Gray and Co., 1833), 22.

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5 Responses to “Constitutional Anarchy”

  1. Dottie Says:

    Wow! Every American needs a clear understanding of this.


  2. Luther Says:

    I would most cheerfully agree with your assumptions. However, I find the piece a “difficult read.” To activate your readership, I would suggest a motivational statement immediately following your final assessment; which, by the way, was illuminating. My old advice that Eternal Vigilance is dead, for the people only watched and did not act!

  3. Constitutional Statesman Says:

    In regard to Luther’s comment, I thought this article was perfect as is. Beautifully written. I believe the living constitutions theory is intellectually dishonest. The constitution can only mean what it meant to the ratifiers, and reconstructing that meaning honestly is possible and necessary for it to mean anything. Otherwise, why even have a constitution?

  4. Michael - PCCOH Says:


    Your assessment continues to align perfectly with our own research, and I cannot over-emphasize the importance of your message. The federal government DOES NOT have the power or authority to alter, reform or abolish our system of government – it requires the consent of the people through state ratification. When the federal courts expand the meaning of the U.S. Constitution beyond its original intent, they are effectively altering our form of government without our consent. This is, in the least, sedition. And in the extreme, it is treasonous to the Constitution. Everything government does MUST have authority granted to it from the people, or it is unconstitutional. Unfortunately, the government “assumes” the people grants their authority, “privately”, when they refuse to substantially protest and fail to hold government accountable. Until we, as a people, have an effective and efficient means to “legally” hold our public officeholders accountable, directly, to our state and federal Constitutions, government will continue to usurp powers and abuse the rights and liberties of the people, without repercussion. Learn more about your rights of sovereignty over government at

  5. Timothy_Baldwin Says:

    Thank you, Michael, for your comments. Right on! and keep up the good work.

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