In honor of Constitution Day, we will dive into where we have put too much face in a framework, but did not require enough of ourselves when ensuring our Constitution it the vehicle for us to constrain our government. And we’ll weave in two movies, Jeremiah Johnson and Three Days of the Condor, as there are some interesting parallels with where we are today as a society. And as always, we’ll have some good tunes to enjoy.
1763 Pour Your Sugar on Me
Later in 1764 Otis would develop these ideas further and published The Rights of the British Colonies Asserted and Proved. In that work he declared that property ownership was the right to exclude others. This also meant government could be excluded as well. Unwarranted searches exposed your property and violated your safety. The Writs of Assistance protected the customs agents from punishment when damage was inflicted during the searches. If you have no recourse when your property is damaged after a fruitless search is conducted, your property has no value to the regime. You won’t be compensated. They have every incentive to be as destructive as possible because it sends a message that quells resistance, and it reinforces their greater authority.
In this work, Otis also wrote “supreme absolute power is originally and ultimately in the people.” This was the first time that this concept was expressed in colonial America, and was the fiery rebuke of monarchical power. It defined the colonists as citizens and not subjects of a higher authority. It would take 27 years and a war before this concept would be enshrined in our Constitution.
Constitution Day: Sept 17th 1787
Constitution Day, observed on September 17, commemorates the signing of the United States Constitution in 1787 by the delegates at the Constitutional Convention in Philadelphia. The day marks the formation of the American government as designed by the Constitution—a framework that established the system of federal government, checks and balances, and sought to enshrine and preserve the rights and liberties.
The Constitution does not GUARANTEE rights, it is a mechanism that originally was intended to limit what a federal government could do to usurp individual rights, as well pursue the duties designated by the states as the states agents in foreign affairs, commerce and defense.
Constitution Day: If You Can Keep It
In these sentiments, Sir, I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.
Are the Courts The Only Constitutional Remedy?
The view of nullification is summarized by Thomas Jefferson, who stated clearly that where powers are assumed by the government that have not been delegated, “a nullification of the act is the rightful remedy”. This is presented not just as a possible remedy, but as the “rightful remedy”.
The 10th Amendment is that avenue of nullification. The Founders were very clear that any act that was unconstitutional was immediately VOID, a NULLITY. This meant that citizens had the duty to disobey that law. Waiting for the courts to weigh in results in perpetuating that illegal law. So there is, in fact, NO DIFFERENCE between a Constitutional Act and Unconstitutional Act. You wait for the judge to grant you freedom.
When the courts fail to perform their duty, the people still retain the final say. At the Virginia Ratification Convention delegate George Nicholas explained that if the judiciary does not declare an act exceeding constitutional powers to be void, “the people will have a right to declare it void”.
This is either via amendments or by invoking the 10th Amendment.
Treating Unconstitutional Acts: Even Alexander Hamilton, while discussing federal supremacy, held a similar view on unconstitutional acts, stating that acts of government that are not “pursuant to its constitutional powers” but are “invasions of the residuary authorities” will not become supreme law; instead, “these will be merely acts of usurpation and will deserve to be treated as such”. Treating them as such means disregarding and punishing the attempt.
Without Nullification, The New United States Was No Different than Britain
Without the people’s ability to tell their agents in government that that a law is VOID due to unconstitutional nature, then the citizens are merely asking their rulers to remember the protect their rights.
Warning From Madison – Federalist 48
I shall undertake, in the next place, to show that unless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained. . . . It is agreed on all sides, that the powers properly belonging to one of the departments [executive, judicial or legislative] ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers.
“a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands”
Power must be kept in check by PEOPLE. A system can never do that by itself. Perhaps we rely on separation of powers to do the work for us.
Warning From John Dickinson
A Constitution Promotes, but Doesn’t Produce: He stated that “a good constitution promotes but not always produces a good administration”. Since a bad administration “may take place,” Dickinson posed the essential question: “What is then to be done?”
1. Duty to Watch: The people have a “duty to watch” the government. This echoes the sentiment of James Otis Jr., who believed it was the duty of citizens “to watch over our Constitution with a jealous eye”.
2. Right to Take Care: The people also have the “right to take care that the Constitution be preserved”.
3. Preventing Damage to the Republic: This active preservation is vital, expressed through the Roman phrase concerning perilous occasions: “to provide that the republic receive no damage”
The Treason of No Constitution
For Spooner, there was no no formal contract between the American people and the federal government. Spooner reflected many of sentiment of the Anti-Federalists like Patrick Henry and Thomas Jefferson. In other words the Constitution, because it didn’t behave like other contracts regarding renewals and participation with people signing or voting for continuing, was not a social contract.
Spooner believed that the U.S. Constitution as non-binding rests on his contractual theory of governance, emphasizing explicit individual consent and the inability of past generations to bind future ones. The Founding Fathers, particularly Federalists like Alexander Hamilton, James Madison, and John Jay, articulated counterarguments through debates and writings such as The Federalist Papers. Here are their key rebuttals to Spooner’s claims:
- The Constitution lacks signatures from the majority of citizens it claimed to bind at ratification, violating basic contract law requirements of mutual assent and formal acknowledgment
- Even if some individuals consented in 1787–1788, Spooner noted that “the original parties to the purported contract … died with them,” nullifying any obligation for later generations
Legal instruments like wills or deeds require renewal by successors; constitutions, he contended, should be no different
Even if ratified by a majority in 1788, descendants cannot be bound by decisions made “eighty years ago” without their explicit agreement
By permitting slavery, the document failed to uphold natural rights, undermining its claim to moral authority
He rejected the idea that a flawed contract could legitimize coercion, arguing that “usurpers … practising this tyranny” lack ethical standing
Spooner believed that the Constitution, which did not have signatories from the current generation, precluded members of Congress from being held responsible. While this may not be accepted as a legally valid today, it does illustrate how our government is functioning.
For still another reason they are neither our servants, agents, attorneys, nor representatives. And that reason is, that we do not make ourselves responsible for their acts. If a man is my servant, agent, or attorney, I necessarily make myself responsible for all his acts done within the limits of the power I have intrusted to him. If I have intrusted him, as my agent, with either absolute power, or any power at all, over the persons or properties of other men than myself, I thereby necessarily make myself responsible to those other persons for any injuries he may do them, so long as he acts within the limits of the power I have granted him. But no individual who may be injured in his person or property, by acts of Congress, can come to the individual electors, and hold them responsible for these acts of their so-called agents or representatives. This fact proves that these pretended agents of the people, of everybody, are really the agents of nobody.
If, then, nobody is individually responsible for the acts of Congress, the members of Congress are nobody’s agents. And if they are nobody’s agents, they are themselves individually responsible for their own acts, and for the acts of all whom they employ. And the authority they are exercising is simply their own individual authority; and, by the law of nature—the highest of all laws—anybody injured by their acts, anybody who is deprived by them of his property or his liberty, has the same right to hold them individually responsible, that he has to hold any other trespasser individually responsible. He has the same right to resist them, and their agents, that he has to resist any other trespasser