Who Decides?
The Moral Necessity Of Limited Government
What do the following bits of legislation have in common?
Each was a law duly passed by an established legislature.
The Separate Car Act was the law Homer Plessy stood accused of violating in the pivotal Supreme Court case Plessy v Ferguson (163 U.S. 537), which established as constitutional the segregationist doctrine of “separate but equal”—a doctrine that would stand until the 1950s.
The Virginia Sterilization Act was the law at issue in the Supreme Court case Buck v Bell (274 U.S. 200), where the Court ruled that the State could mandate the sexual sterilization of persons it deemed afflicted with “hereditary insanity or imbecility”. It was in that case that Justice Oliver Wendell Holmes made his execrable declaration that “Three generations of imbeciles are enough.”
The Reich Citizenship Law and the Law to Protect German Blood and Honor were the infamous Nuremburg Laws passed by the Nazi Reich in Germany in 1935, and by which German Jews were stripped of their citizenship and almost all of their civil rights. They were a crucial step towards the Nazi Holocaust during WW2.
Each of these laws stands as infamous history, examples of government gone wrong.
What Should Government Not Do?
The justifications for government action are legion: calls for assault weapons and gun bans in the wake of the horrific Uvalde shooting, the coercive lockdowns and inoculation mandates to contain the spread of COVID-19, et cetera. Most are cloaked in well-intentioned rhetoric about stopping violence and preserving human life—notable and eminently defensible objectives by any measure.
Yet every advocate of such government action should pause and ponder: what should government absolutely not do? What government action would they want prevented?
Should government have the authority to conscript soldiers for an overseas war?
Should government have the authority to compel a woman to abort her unborn child—as was the case in China under its One Child Policy?
Should government authority ever be beyond all scrutiny and accountability? Is government authority intended to be absolute and all encompassing?
How Is Government Limited?
If the answer to any of these questions is “no”, we are immediately confronted with another question: how do we limit government—not just theoretically, but practically?
The prevailing answer in most countries today is the constitution by which a particular national government is chartered. Within such constitutions are found the key declarations of what powers are to be given government, what rights are retained by the people, and what protections those rights enjoy from predation by the powers of government.
As Chief Justice John Marshall explained so eloquentlly in Marbury v Madison (5 U.S. 137), the nature of constitutions invariably imposes limitations upon government:
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
Constitutions define the structure of a government, and structure, by its very nature, imposes limitations upon that government. Following on Marshall’s thesis, the key to apprehending the role of a constitution is that the government so chartered is unable to lawfully act in a manner contrary to the dictates of the constitution. Where government action contradicts constitutional requirement, the constitutional requirement immediately and automatically voids that action, depriving it of legal form and legal substance.
Why Must Government Be Limited?
While it is fairly easy to see that a constitution is the legal means by which government authority may be limited, returning back to the questions posed above we must address the question of why government must be limited?
While it arguably would be easy for anyone to identify at least one action government should not do, or power government should not have, upon what justification can people broadly agree about what powers governments should or should not have, or what actions government should or should not take?
Perhaps the best answer for this lies in the Preamble of the United States Constitution:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.
What was true of the nascent United States in 1787 is true for all countries in all times: the people—the society itself—always precedes the government. There is no government without people. A people gives rise to government, never the other way around.
Indeed, Thomas Jefferson stated as much in the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed
As Jefferson eloquently explains, government has authority to act only because the people consent to grant such authority.
People consent to government. Which is to say people do not surrender to government. We agree to be governed; we do not yield to government compulsion or demand—the latter by definition is synonymous with tyranny.
Government accordingly must be limited in its scope and its authority because for it to be otherwise means people no longer consent to be governed, but are instead compelled and coerced into accepting governing—consent is distorted into surrender, and just government is distorted into tyrannical government.
Government Cannot Always Be The Answer
The practical consequence of this understanding of government is that it can not always be “the answer” to society’s problems—arguably, it is never the answer to society’s problems. There are some authorities government does not have, authorities people have not granted to their government. There are powers a constitution either explicitly denies government or implicitly prevents government from assuming.
If government is limited, government ability to act in various circumstances is also limited. Sometimes government has no power to act at all, and is not in any fashion a solution to a problem.
Thus, as horrific as the school shooting in Uvalde, Texas, was, we cannot look to government for answers. We cannot look to government for means to take weapons out of the hands of such evildoers. We cannot look to government because government has been denied that power, by virtue of the Second Amendment.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
As I have argued previously on this topic, where the Constitution denies government the power to act, it is pointless to demand that government take action.
Thus, when we ask "What constitutes 'common-sense' legislation on guns?" we are asking the wrong question. That is merely a philosophical debating point, and has little actual relevance to the debate at hand, which is effecting legislation on guns.
The question we need to ask is "What legislation is Congress authorized to pass on guns?" This is directly relevant, directly applicable. There is little point to waxing rhetorical about "common-sense" legislation if Congress lacks the authority to enact such legislation. There is no good purpose served by dwelling on measures the Constitution does not permit Congress to pass.
Grammatically, the Second Amendment is inflexibly categorical. The right to keep and bear arms is not to be infringed at all. The linguistic clarity of the Second Amendment confounds government activist types who seek rationalizations for government action, and yet the clarity of the Amendment remains. That clarity was acknowledged in the Supreme Court case District of Columbia v Heller (554 U.S. 570):
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.
Thus, the argument favored by many that the Second Amendment is about the formation and regulation of state militias is revealed to be invalid by the analysis of the Supreme Court. That analysis also points out something else about the Second Amendment: it does not articulate any limitations on the right to keep and bear arms whatsoever
This is an important distinction, for Justice Antonin Scalia, in writing the Heller opinion, conceded that he did not consider the right to keep and bear arms to be an unlimited right. Whether that right is or is not limited is an endless philosophical debate, but the practical point of the silence of the Second Amendment on limitations is that nowhere within the Constitution is government empowered to say what limitations exist or should exist on the right. Even if we were to agree as a people on some form of “common sense” gun regulation, the Congress has not been given the authority to legislate it.
Where Congress has not been given authority to legislate, Congress may not legislate. That is the point driven home in Marbury.
In similar form, the power of government to impose coercive lockdowns under the rubric of protecting the public health is inherently suspect. The First Amendment denies Congress the power to regulate how people may peaceably assemble:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Congress cannot pass any statute restricting the right of the people to peaceable assembly. It follows necessarily that Congress cannot empower a government agency to restrict the ability of people to gather together—Congress cannot grant any agency any authority but through legislation, and any legislation which restricts people’s capacity to gather together peaceably is forbidden to Congress.
Even if lockdown measures against COVID-19 worked (which they do not), the Congress lacks the power to enact them. That is not a step the Congress can lawfully take.
Where Congress has not been given authority to legislate, Congress may not legislate.
Where Congress has not been given authority to legislate, Congress may not delegate.
This The Founding Fathers Stated. This The Founding Fathers Intended
This limitation upon Congress was not by accident. It was demonstrably by design. That is made plain by the Ninth Amendment as well as the Tenth Amendment.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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.
Taken together, these two amendments make clear that, wherever the Constitution is silent regarding either rights or powers, the presumption always goes against government and instead goes to the people and/or the several States. As with the First and Second Amendments, there is zero room for debate or discussion on this point. Taken together, the Ninth and Tenth Amendments yield one inescapable conclusion:
Where Congress has not been given authority to legislate, Congress may not legislate.
Congress may not limit or deny rights to the people except as the Constitution may explicitly authorize.
Congress may not impose on the people except as the Constitution may explicitly authorize.
Regardless of what various Supreme Court cases might have held previously, the plain text of the Constitution, including its Amendments, allows for no other understanding of the Constitution’s dictates toward the government. Where the Constitution is silent, government is to be barred from governing.
The text of the Constitution not only makes this principle plain, it makes the rationale for the principle equally plain: only by placing boundaries on the scope of Constitutional government can the Constitution possibly hope to achieve its stated purpose of securing the blessings of Liberty for ourselves and our Posterity.
Government can go wrong, has gone wrong, and will in the future go wrong. History makes that much plain. Our only means of correcting government when it does go wrong is to ensure that it remains limited in scope and authority, and only acts where people grant it competence to act. Only then do people retain the power to fix what government breaks.
