Blunders of the Founding Fathers; C. LaDow

It would be well to ask what basic errors the founding fathers made in that instrument. Even if the errors were erased, the danger would still arise that scamps and the ignorant would manage to di lute its purposes; however, era sure of the most obvious mistakes in its construction and early exe cution could remove some of the opportunities for the tragic dis tortion of our basic law which has ensued. The basis of any law is its in tent, which existed in the meeting of minds of its promulgators. To maintain otherwise is to allow that any judge may interpret its intention to suit his own notions. Neither our Constitution, nor the legislatures for which it provided, were designed for such futile pur pose. Its ratification signified binding agreement with the Con vention's intent by all parties to our government. Provision for amendment was intended to allow 95 96 THE FREEMAN February for correction of inevitable over sights, such matters as we here address ourselves to; not to alter the fundamental purposes and spirit of the document. To hold otherwise. is, as Chief Justice John Marshall said, in Marbury vs. Ma,dison, to render the Con situation "an absurd attempt to limit a power in itself illimitable."

A contract means what its signato ries intended it to mean. Sacred ness in the intent of contracts was reiterated in the Dartmouth College case. The Declaration of Independence So many persons, both learned and unlearned, prefer to cite The Declaration of Independence as the spiritual source of the Consti tution that it may be well to in spect its key intent. The words, "We hold these truths to be self evident; that all men are created equal . . ." are the most often quoted, and speakers vie with one another in attributing meanings to, or heaping scorn on, this fine example of rhetoric. Some light can be thrown on the intent of the author of the Declaration by examining Jefferson's original draft. The same passage read: "We hold these truths to be sacred and undeniable; that all men are created equal and independent ..." Jefferson thus avoided turn ing a noble religious concept into a logical canon. The addition of the qualification of "and indepen dent" clearly implied a firm indi vidualism foreign to many who use this passage to fortify collec tivistic purposes. Not knowing how Jefferson's words came to be altered, one can suspect that it was one of those common disasters of committee work. Anyone who knows the thinking of his peers would suspect that they were in agreement with his original intent, but were probably just word trimming.

How John Locke's "Life, Lib erty, and Property" became "Life, Liberty, and the Pursuit of Hap piness" is another matter. J effer son was not a dogged plagiarist, and probably liked the ring of it. It does sound less pedestrian than Locke's bit; but that certainly does not mean that its intent was foreign to its origin. The love that Jefferson bestowed upon Monti cello and all other fine things tells us of his awareness that private property is a considerable essence of happiness. That "and indepen dent" nailed it down. How can one be independent if the right to pri vate property is not sacred? Turning to the Constitutional Convention, the main conflict of opinion was between the Federal ists and Anti-federalists. That the differences of these factions were not ineluctable was shown by their 1975 BLUNDERS OF THE FOUNDING FATHERS 97 ability to come up with the docu ment. Later addition of the Bill of Rights, most especially the 9th and 10th Amendments, represent ed satisfactory resolution of their differences. Individual misgivings remained, but the ratification of nine states made the Constitution the law of the land.

Differences of interpretation later led to war, but the Confed erate Constitution was a virtual copy of the original. Its preamble called for the establishment of a "permanent Federal Government" and the main objection it sought to remove was Federal invasion of rights reserved to the states by the 10th Amendment. Presum ing correctness of this objection, original misgivings of the Anti federalists had some justification, as subsequent developments have borne out. Without equivalent amendment to legalize the changes, states rights are being legislated out of existence or eroded by court decisions. The Intent Is Clear Whatever flaws we may detect in the Constitution, the essential drive of the original document is crystal clear. Precisely its whole thrust is the protection of indi vidual liberty and the careful re striction of government inroads, most especially those of the Fed eral government. Perhaps the original requirement that all direct personal taxes must be equal (abrogated by the 16th Amend ment) was the most essential safe guard. Not only did it ensure the sacred principle of equality enun ciated in the Declaration of Inde pendence and make certain that all individuals would be equally interested in governmental econ omy; but it was an effective stay against the corruption and totali tarian moves which mark our gov ernment today.

"The power to tax is the power to destroy" and nothing can be more important than limiting gov ernmental power. It cannot be too often pointed out that the Bill of Rights, revered even by our so cialists to a point which outweighs the main body of the document, is totally a list of "thou shalt nots," like the Ten Command ments, directed at the Federal government. Congress breaks the spirit of some of those command ments every term it sits! In view of today's regimentation in a na tion of once free men, let us try to see what the founding fathers have done that has allowed mat ters to get so out of hand. Money and Banking It has been pointed out, by Leonard Read and others, that the Constitutional power given Congress to "coin money and es98 THE FREEMAN February tablish the value thereof" was only intended to be a "Bureau of Standards" operation, like weights and measures, to assure fair mea sure in trading. That fits the lim iting sense of the document, as we have noted. However, the founders put no stipulation upon the substance of the coinage. With their recent experience with "Con tinentals," they might suspect that coins might easily become paper and that, eventually, "set ting the value thereof" might have no relation to its purchasing power. Granting power to "bor row money on the credit of the United States" assured such an outcome. That same Revolutionary experience should have indicated the propensity of government, in a pinch, to monetize its debt (Hamilton's "funding of the debt") to let coming generations pay it, and allow speculators to profit therefrom. Anti-federalists understood this; but they failed to insist on a restrictive clause, for bidding the issuance of Federal paper. That blunder is responsible for our current national debt and ungoverned inflation which attends its ongoing monetization.

Even the necessity of govern mental coinage is brought into question by the story of the Den ver Mint. It was started by two gold buyers to avoid the risks of primitive transportation of their commodity to the Philadelphia mint. (Even Brinks has known se curity problems!) Their private striking of coins exercised the Federal Treasury men, who sought to undo their activity. When inves tigation showed that their coinage even exceeded Federal standards, the T-men were stymied. However, continual harassment caused one of our entrepreneur's wives to suggest that they strike a deal. With the stipulation that the trea sury maintain the mint, achieving their original purpose, they sold the plant to the government. The mint now stands on ground once owned by the private enterprise that founded it. There are a number of fine pri vate mints today, perfectly capa ble of taking care of the coinage according to any standard of weights and measures. Current suspicions, in Congress itself, re garding the real quantity of gold remaining in Fort Knox raise the question of the fitness of govern ment even to be trusted with the materials of coinage. Constant centralized burning of worn mon etary notes raises added questions of security. Decentralization of risks is a first consideration of saf ety, as every miser knows in stashing his hoard.

Anti-federalist arguments against a national bank are too well-known for recounting; but, 1975 BLUNDERS OF THE FOUNDING FATHERS 99 here again, opponents of such an institution failed to see that its proscription was printed in the Constitution. At that, Hamilton's success in getting a bank bill passed was achieved by a Federal ist bribe: agreement to move the capital city to the Potomac. The founding fathers had their Water gates too! Let it suffice to point out that this Constitutional over sight opened the Pandora's box from which finally emerged the Federal Reserve which, combined with Treasury paper, is the source of our current monetary woes. Post Office "Establish post offices and post roads." In itself, the Post Office is a minor irritant, except perhaps to those who, like Life and Look, attribute their failures to its min istrations. However, the blind faith in the· necessity for that Fed eral institution, only recently com ing into more question, has un doubtedly evoked chain reactions in various directions. Railroads, airlines, airports, automotive transport, and all the facilities pertinent thereto have been touched by this clause. Success and failure of private enterprise in all these areas has, in some measure de pended on Post Office policies.Spe cial privileges for those engaged in these fields and many attend ant portions of the market show little respect for the uses of com petition. As we are beginning to realize, governments are the only true monopolists; and monopolies affect the welfare of all their sup pliers, being cruelest to the small est. (For example, United Parcel may survive; but what happened to local, one-truck, parcel deliv eries - an activity open to the un employed?) Of course, the disas trous aspect of the institution is its inevitable inefficiency, which is an economic burden on every one. Establishment of the Postal System as a public corporation was an admission of the foregoing.

Its failure to ameliorate the con dition was foregone from the start. It can no more do the job than can public transportation sys tems of any sort. The difficulty of mail delivery in 1789 made the Convention's inclusion of this clause plausible; but the outcome has not justified the act. Interstate Commerce On the face of it, delegation to Congress of the power to regulate interstate commerce was a saga cious and necessary step. The en tire history of states has been marked by trade wars, tariffs, and embargoes. It was presumptive that our states, from the thirteen to the fifty, would have engaged in such activities; and avoiding that was of the utmost importance.

100 THE FREEMAN February However, there was no stipulation limiting the excercise of this pow er and it should have been fore seen that it could generate inter ference with commerce even more onerous than the faults it curbed in the states. The founders were fully aware of the dangers of governmental powers, as exposed in their so re cent detailed charges against King George. They would have been naive indeed to suppose that "it could not happen here." It would not have unduly cluttered the pro per brevity of the instrument to add a clause restricting the com merce power to that legitimate stoppage of state interference in trade. Perhaps the proscription of state tariffs should have served that purpose; but the interstate commerce cIause opened one of the greatest loopholes into which Federal power has increasingly surged. So, this must count as an other error, encouraging the bu reaucracy which now so drains our productive resources, upsetting trade and hamstringing enter prise.

Education Nothing was said in the Con stitution about education. It has been suggested that this benign neglect was sufficient and that the 9th and 10th Amendments should take care of that danger of power extension. After all, no power was delegated in that field. However, four years before the first Federal Congress was seated the Ordinance of 1785 had been passed, arranging for a section (640 acres) out of each township of public lands, plus one-third of the revenue of all gold, silver, lead or copper mines, to be gifted to public education. Thus one-thirty-sixth of the future de veloping nation's most basic re sources, land, plus promise of a large share of its mineral wealth, was deeded to ensure the preva lence of public schools. So dear to the democratic tradition is the sacredness of public education that one might be burned for heresy for questioning that Ordi nance, or the loophole which made it possible. However, when we look to the development of educa tion in the original 13 states, we see that it progressed splendidly without such paternalism. Al though the land grant colleges and universities, with their rich public resources, have been able to purchase a good deal of em inence, they have hardly excelled the great Eastern schools, or even private schools elsewhere, which were built without the boon of such public largesse.

Once public money walks into education, schools are on their way to sure politicization. Management of curriculum and all other aspects 1975 BLUNDERS OF THE FOUNDING FATHERS 101 of our public schools, from kinder garten to the doctorate, is now politically determined. What that means was well said by Albert Jay Nock: "The whole institutional life organized under the popular idea of democracy . . . must aim at no idea~ above those of the average man; that is to say, it must regulate itself by the lowest common denominator of intelli gence, taste, and character in the society it represents." Because most private colleges depend on some Federal gr:ants to survive, and because government threatens to withhold such grants· if they do not comply with some regulations supporting the above nonsense, our private schools now suffer from this political disease in an increasing degree, becoming ad juncts of statism.

So much said about a subject not mentioned in the Constitution may seem like "whipping a dead horse"; but one is sure that it will be agreed, considering the propor tion of our productivity which is consumed by public education, and the avidity with which all parties pursue its trappings and labels, if not its essence, that our time is not wasted. Let us just say that the founders should have posi tively told Congress to keep its hands specifically off education. It is bad enough to have the states meddling in it; but they wouldn't have gotten nearly so far without that original 1785 handout and all the perquisites which inevitably followed it. Education is altogether too important a thing, being the development of the individual, for government to have anything to do with it. If government were capa ble of directing the development of individuals, its products would not be free men. We have seen the effort made, not too long ago, in Germany, Italy, and Japan; and the Gulag Archipelago is available to all readers. States "shape" peo ple. Individual efforts may en lighten them.

Public Works Provision for public works makes sense. Government can't carryon in a wheatfield. There must be buildings, equipment, forts, drillfields, and armaments, although, under statesmanlike management, a company of Swiss Guards might do. Still, let us be reasonable. Statesmen are rare and few of us qualify. Let politicians have what they need. But do they need over seventy per cent of the land in the Western states? Do they need a publicly funded dam on every stream? When they have turned our most attractive lands into parks, do they need to assault the moon? By the time the Southern States seceded, they saw the way the wind 102 THE FREEMAN February was blowing. In their Constitu tion, they corrected this oversight of the founding fathers. They pro vided that the central (Confed erate-Federal) government would not be allowed to erect public works in any state. Had they won the war, think what that would have meant to Muscle Schoals, T. V. A., and the multitude of .

other Federal boondoggles which were to come! Would that mean that we now would be suffering poverty in the midst of an ecol ogist's paradise? No. Henry Ford had the plans all worked up for Muscle Shoals. It would have been attractive even to ecologists, for old Henry, crotchety as he was, never made an ecological mess in his life. He was too neat and thrifty. His plan would have cost the taxpayers nothing and would have created thousands'of taxpay er's jobs without adding a soul to the public payroll (unless some unnecessary inspectors were sent around) . If you hadn't noticed it, private operators have to be neater than government. To succeed, they have to court the consumer. Government enterprises have no such compul sion, and we are still paying for most of those public works. A good deal of the payment is in the form of inflation, as earlier explained; but we are directed to blame that on butchers, or cattlemen who slaughter young calves. It is not exonerating the "middlemen" or producers from such foolishness to point out that they are not the guilty ones. They, like their con sumers, are the angry victims of bad political economy. Sane policy requires that everything that can possibly be done by private initia tive and support should be left to the people. Not only is that the re quirement of Articles 9 and 10. It is also the way that works best.

The Elastic Clause: Art. I, Sec. 8., Par. J8 Perhaps the most glaring gaffe of the Convention was the inclu sion of the "elastic clause." To specify delegated powers, but to invite future legislators to decide what is "necessary and proper" in the extension of those powers, is to encourage altering the intention of the document without amendment. This is just what has happened. Erasure of such practice was the essence of the decisions in Mar bury vs . Madison and the Schech ter Poultry case. From the admin istration of John Adams to that of Franklin D. Roosevelt, the Su preme Court held the clear intent of the Constitution superior to common legislation. Later, even the Court has assisted in rewrit ing that intent. To clarify that last statement regarding the Court, let the reader 1975 BLUNDERS OF THE FOUNDING FATHERS 103 'consult The Reconstruction Amend ments' Debates. While it is not within the scope of this paper to go beyond the original Constitu tion and Bill of Rights, this re print from the Congressional Globe, by the Virginia Commission on Constitutional Government, con tains the sense of Congress in writing the 13th, 14th and 15th Amendments. No more than the 16th Amendment have these Re construction Amendments stayed within the boundaries of their intent. Compare legislative argu ments clarifying Article 14 with the host of recent Court decisions, including Bro1.vn vs. School Board, to see what I mean, remembering the principle that laws must mean what they were intended to mean by their framers. Otherwise, we are in the world of Humpty Dumpty: "When I use a word ...

it means just what I choose it to mean." Returning to the "elastic clause," at any rate it violates the rhetor ical economy of the document. Leg islators will expand their domain without any encouragement. It is unnecessary. Like the "general welfare" clause in the Preamble, it is subject to infinite expansion in interpretation. Properly under stood, the latter clause is unobjec tionable, of course, unless it is construed to mean establishment of a welfare state, which is absolutely and clearly alien to the pur .. poses of the founding fathers. They saw the general welfare as consisting of the liberty-under-Iaw of individuals, which the Constitu tion was established to protect from excessive government itself, or the invasion of foreign power. What Can Be Done? If the foregoing reasoning is correct, what can be done about it? First, are conditions suitable for any corrective action? Well, it is generally agreed that government approaches an inability to govern.

Neither the President, nor Con gress, is able to control the Frank enstein bureaucracy it has cre ated, which has become, essen tially, a law unto itself. By all ac counts, public faith in politicians, of whatever brand, is at an all time low. Congress attempts to make the Executive the scapegoat; but is prevented from anything more than palliative action by the power delegated to the bureauc racy created by Congress itself and which outruns Executive pow er. Querulousness and backbiting characterize the scene, obscuring any real issues. Such an organi zational vacuum invites leader ship. At this point, Amendments and/ or the erasure of some amendments by the process, should be a possi bility; but such action would only 104 THE FREEMAN February be cosmetic surgery, failing to get to the root of the disease. They would be time-consuming, while affairs would continue to drift. For instance, consider how long the Liberty Amendment (abolition of the Income Tax) has been drift ing around. Presumably state gov ernments are too busy spending Federal money to give it much time. Altogether, it would seem that a piecemeal approach would not engender the interest or en thusiasm required.

At this point, a real possibility for leadership should be open to state Governors. If at least two thirds of them could agree, they could ask their legislatures to call for a National Constitutional Con vention. Conditions being as they are, it is not impossible that Con gress would honor such a request and call the convention. Considering the current sham bles of political philosophy in this nation, there is a great risk in such a step; but there is even greater risk in allowing matters to drift. Bicentennial celebrations draw at tention to the purposes of the founding fathers. Polls indicate increasing conservatism among the electorate. The supply of free market economists and political traditionalists is sufficient to ex pose our basic tradition. One can never be sure about timing, ex cept, sometimes, in one's own affairs; but it would be hard to pro ject a better time for reconsider ing our priorities. Where is the person who does not long fora way out of this nightmare? Some can for revolution; but they are still few and very confused. The hunger for liberty is still strong in individuals and calls only for certain direction toward it.

If this enumeration of blunders in our original Constitution is ac ceptable, it might be offered to that Constitutional Convention as a beginning to its considerations. Our forefathers improved the Ar ticles of Confederation. They would certainly not object to our retouching their masterpiece, so long as it verifies their intentions. Since all factions of any conse quence professedly hold that docu ment in reverence, placed face-to face with it they should not do it harm. At the very least, it would be fruitful to study it. Going over it, phrase by phrase, and debating the thrust of each clause, would be sound exercise for any politician. Even if they came to no conclusive action and adjourned sine die, the action should produce nothing but good for the future of this nation. And, if they could find a few words, and let them be few as in the original, to close up such loop holes as herein mentioned, we might be well on the way to "clean up that mess in Washington." ~ The WILLIAM H. PETERSON or the ?• WHY THE FAILURE of modern eco nomics - the vaunted "New Eco nomics" of John Maynard Keynes?