Category Archives: U.S. Constitution

Rescission of the Constitution for the United States of America — To enable better “securing the Blessings of Liberty”

[A PDF version of this article, including the footnotes thereto, may be downloaded from here.]

On November 3, 2020, I transmitted the following message to my State Senator, along with a suggested application bill:

“Subject : Article V Convention Application Bill

On this Election Day it seemed to me that perhaps the best mode for participation, given the regrettable apparent irreconcilability in our nation, would be to propose the submission by you of a Bill for a Convention of the States, pursuant to US Const, Art V.

Accordingly, I submit the attached for your consideration and potential action.”

A suggested application in generic format can be downloaded from here.

As many conceive and as the author reluctantly concurs, there then existed a “regrettable apparent irreconcilability in our nation”; this assessment was articulated by diverse voices, from across the spectrum consisting of both liberal and conservative proponents, from “elite” and from “ordinary” exponents. This irreconcilability has only been accentuated during the ensuing fifteen months.

While the polarization is between both various segments within society as well as government units of the nation, the author apprehends that the catalyst is an excessively-powerful National government. Rather than restrict itself strictly to the enumerated powers granted to it, it has expanded its reach to innumerable arenas of the liberty, and even of the freedom, of its citizens. Accordingly, the possibility of a radical restructuring of the National government should be seriously considered; by this I suggest the repeal of the Constitution for the United States of America and its replacement by a new instrument of government.

* * * * * * *

The evolution of the settlement of our Nation essentially followed the historical course of community formation. Initially, local enclaves were established; most of these habitations though were pursuant to commercial grants from the English Crown rather than autonomous individual and group migration into virgin territory. Many of these grants allocated territory to these adventurers greatly in excess of those enclaves first inhabited.

Initially the magistrates of those enclaves only governed locally since habitation had not expanded beyond their limited peripheries. Yet, as the magistrates’ authority extended to the boundaries of these grants and various inhabitants of these enclaves migrated to new localities within those boundaries, their authority likewise expanded to encompass them — resulting in a commonwealth embracing numerous communities and the subordination of the initial enclave thereto. Thus, though the inaugural local body polities constituted the foundation of these commonwealths, they did not remain as the predominant civil order but rather were incorporated within and subject to the commonwealth.

This then resulted in the Colonies, and eventually the States, being the sovereign bodies. We then are compelled to consider the powers and remedies available within the context of State jurisdiction rather than local jurisdiction.

Nevertheless, in assessing whether fundamental changes to governmental structure are necessary, as well as the parameters thereof, we must constantly remember core concepts and axioms. For these constitute the foundation upon which any governmental edifice must be structured; repudiation of these concepts and axioms, and substitution instead of an artificial composition will only introduce fragility and the failure and destruction of the edifice.

The author conceives these concepts and axioms to consist of the following:

  • Neighborhoods initially were, and remain still, the core unit of habitation. (This was propounded in the first volume of the author’s Interstice Amid the Fabric of Life essay, The State of Primordial Mankind.) The most-frequent interactions transpire between persons in close physical proximity and regular intercourse with each other and from which their identities are embellished.
  • Neighborhoods then are described and delineated by the radius of normal interaction between the majority of contiguous inhabitants. This interaction will allow the development of common identities and a network of mutual supply of physical necessities and reciprocal assistance and support, both physical and moral.
  • The smaller the political entity, the less the diversity of its inhabitants.

Thus, though we are compelled to recognize the States as the operative entity, we are also compelled to recognize the surpassing importance of the local civil orders and their utilization as the primary expression of the civic will. The justification for this assertion is further confirmed by an examination of the purpose and limitations of these civil orders.

* * * * * * *

The initial stage of the inquiry is the consideration of the inextricable limitation on their authority; for the prime proscription on their powers consists of those inherent rights of its inhabitants which are beyond their capacity to invade. As argued previously by the author, no person, individually or collectively, has the authority to alienate his Primary Natural Rights. Only Secondary Natural Rights are capable of alienation; even then the alienation must be express, unambiguous and unqualified, and restricted to the context which induced the alienation thereof.

Therefore, if the inhabitants of a locality elect to establish a commonwealth for it, the only powers they can grant to it are the powers to regulate Secondary Natural Rights. The necessary corollary, since a commonwealth can only exercise the powers granted to it, is that its powers then are limited to the regulation of these Secondary Natural Rights; even then the regulation of those rights must be both uniform and subject to the express and innate restrictions upon those powers.

Thus, governmental powers are inherently and inextricably limited. The initial and basic limitation consists of the scope of power delegation, for the state cannot exercise a power that it was not granted. This scope is inextricably proscribed as the citizens of a commonwealth are entitled to delegate to a government only those powers whose exercise will generally restrict the Civil rights of at least a majority of the citizens of the commonwealth. In addition to the prohibition against a government exercising power that would restrict the Primary Natural Rights of its citizens, it is limited to regulating only the portion of those additional Civil rights, viz, those which do not constitute Primary Natural Rights, that also constitute Civic rights. There, however, are further reasons for this conclusion.

A more-important, albeit conceptual, limitation consists of the role of a commonwealth and the powers it is entitled to exercise in the performance of this role; if we first isolate the basic purpose of the commonwealth then we better delineate this role. The basic purpose of a commonwealth is to prevent, as far as practicable, an abbreviation of the scope of Liberty available to each individual in the natural order. Hence, the role is to eliminate, or at least ameliorate, conditions that adversely affect at least a majority of its citizens, viz, constitute general problems within the commonwealth.

By this formula the powers that can be exercised gradually diminish, in both scope and degree, the greater the population and geographical extent of the commonwealth — as within the most geographically-restricted commonwealth the impact that any target condition may exert upon the citizens will be more general and tend toward commonality due to the relative homogeneity of those citizens, while within the most geographically-expansive commonwealth (“federal commonwealth”) any target condition that may exert general impact upon the citizens will be few and extraordinary due to the relative diversity of those citizens. The most local commonwealth then is implicitly granted the greatest quantum of power to eliminate or ameliorate adverse conditions within its boundaries, whereas the federal commonwealth is implicitly granted the least quantum of these powers.

Hence, the powers to which the commonwealth is confined — and which constitute the limit of those delegated to it, unless indisputable evidence to the contrary is tendered by it — are those proper and necessary for the performance of this role and the discharge of this function. In this performance and this discharge, the commonwealth is obliged to ignore problems that are only transient and limited within the body of citizens for which it was instituted. Any other standard would implicate the commonwealth intervening in a myriad of potentially-minuscule controversies, with any boundary line beyond which it should refrain being difficult to define and envision.

Objection will presumably be made that this standard will allow the abuse of, by potential abbreviation of rights that should be afforded to, minority segments of the citizenry. Facially this objection would be well-taken. The solution, however, is the formation of a multi-tiered framework of commonwealths, progressively devolving as far as practicable to the most localized jurisdiction. By such a framework those minority segments will have the capacity to constitute a majority in a localized commonwealth and thereby preserve the rights afforded to them.

* * * * * * *

Does the current structure or practices of government in the United States of America conform to the foregoing standards? Clearly they do not.

By virtue of historical development the States have paramount jurisdiction over the local civil organs; the latter, except for limited functions are wholly subordinate. Instead, the author has proposed that it is the local civil organs that should perform the majority of proper and necessary functions and hence possess most governmental power. Nevertheless, given this historical development, there is little present recourse other than to accept the States as the primary unit.

However, the question of the National government is wholly of another class. The extent to which it has grossly exceeded its constitutional limits and eclipsed the status and roles of the State and local civil organs is malevolence indeed. By endeavoring to do too much, it has necessarily antagonized large swaths of the diverse segments in the country; for while policies can contain various exceptions, any policy has to be essentially uniform and general — and no policy can be sufficiently uniform and general to accommodate such disparate diverse segments.

Hence, a dramatic restructuring is in order. Of what form might it consist?

It is supposed that numerous alternative might be suggested. But the author is bold enough to propose one possibility that, it seems to him, should revert inter-governmental relationship closer to the design originally envisioned, and thereby better “secur[e] the Blessings of Liberty”.

This proposal consists of:

  • the passage of bills by two-thirds (2/3) of the States applying for a Convention of the States;
  • the calling by the U.S. Congress of a convention pursuant to these applications;
  • the convening of the convention;
  • the proposal at and approval by the convention of an amendment rescinding The Constitution of the United States, thereby reverting the several States to their full sovereign capacities, or the approval of a new Constitution that provides for and thereby constitutes an amendment rescinding The Constitution of the United States;
  • the formation of a minimum of, say, nine (9) federations between contiguous States, which could conform to:
    • historical, cultural, or unique geographical characteristics, such as, for example:
      • New England,
      • the Mid-Atlantic States,
      • the South,
      • the Northwest Territory States,
      • the Louisiana Purchase States,
      • the Mexican War States, and
      • the Western Coast (including Alaska and Hawaii); or
    • the current divisions of the U.S. Courts of Appeal; or
    • other combinations not yet identified.
  • the formation of a confederation between these various federations.

The chronology of the foregoing stages of this proposal might be differently manipulated. However, it is tendered that this is a framework that ought to be given serious consideration.

* * * * * * *

In 1787 there admittedly were significant differences between the States. These were the result of various factors, including the different groups of adventurers who founded the colonies as well as the divergent religions to which the respective inhabitants adhered.

Nevertheless, as the substantial majority of the immigrants to the colonies were of British origin, these citizens perceived they were endowed with the inherent and established rights of Englishmen. As a result of this common historical knowledge and perception, the similarities between them were more profound than their differences and effectively submerged, or at least subordinated, any dissimilarities.

Hence, a National government was not regarded as likely to be oppressive since there would exist a common body of citizens of similar mind and experience ready and prepared to resist any tyrannical encroachments. Moreover, there was significant dispersion of the inhabitants within the various States. This relative isolation of the citizens, from each other and from the seats of government, constituted substantial obstacles to any effort to infringe the Liberties of them by any particular factions or control by the respective governments.

These conditions, however, soon experienced eradicable alteration — compromising these protections and, ultimately, these principles. The initial, as well as ultimate, cause was the vast accretion of territory controlled by the United States of America. This geographical expansion, proceeding at various times and occasioned by a variety of circumstances, permanently corrupted the carefully-designed polity.

By enabling the multiplication of the number of potential States it presented the specter of lessened cohesion between the existing and new States; for the lesser the number of jurisdictions the greater the capacity for them to unite on proposing or opposing certain policies, with the converse situation the greater the number of jurisdictions. This then presented both the opportunity and justification for the National government to expand its role and power by entry into this void. Thereby was the equilibrium in the Federal system, between the National government and the State governments, imbalanced.

These new territories also provided the opportunity and incentive for new and expanded immigration into the country, as the new regions and resources enticed the settlement and exploitation of them. This immigration exponentially increased the number of citizens of the country in the aggregate; moreover the diversity of the nationalities, and their accompanying national experiences and heritages, of the citizens was necessarily increased. As a result of this increased quantity and diversity the prospect of uniting on proposing or opposing certain policies was impeded, inasmuch as, one, a greater mass of persons always renders accedence to a common position more difficult and less likely, two, these greater dissimilarities rendered consolidation into a uniform position more difficult, and, three, these different traditions introduced the factor of willingness, or at least accentuated the volume of adherents thereto, in acceptance of, rather than resistance to, authority. Thereby, with reduced meaningful opposition, was the continued momentum of the juggernaut of National authority unabated.

The augmented national territory augmented also its power, both in isolation and relative to other countries. The first effect thereof was to induce it to expand its defense establishment and capabilities. As a normal consequence it was then induced to exercise this capability relative to other countries.

The exercise of this capability resulted in the international expansion of the country, both in the form of new territories — some by conquest and some by the exercise of monetary might incident to economic and military might — and the permanent presence within other countries. The latter is exhibited both in the economic influence over and foreign military establishments in numerous countries by the United States of America.

By all of these factors the authority of the National government was expanded to gargantuan proportions. We are now Reaping the Whirlwind. The cavalier and virtually uninhibited exercise by the National government of its Article I and Article II powers, whether real, presumed, assumed, or seized, has strained the fabric of the country with the resulting tension approaching or being at the breaking point.

Accordingly it appears to more than a few isolated malcontents that a dramatic reconfiguration of this country is necessary. The within proposal is but one of many that could be a solution by which retrenchment of concentrated central power is realized. It though appears to the author that the necessity of this retrenchment is beyond cavil.

A sufficient number of Federations of various States — with substantial powers reserved to those States, and a substantial portion of those powers progressively reserved to the local jurisdictions therein — would not only enable geographical segmentation of diversity in those jurisdictions and thereby obstruct suppression of it by more populous segments of different characteristics in different jurisdictions, but would preserve Liberty by this division of power. A Confederation of these federations would maintain national unity, albeit of a more-restricted scope and a more-restrained National government.

The author does not contend this is an ideal framework; but nothing designed by mortal man is ever ideal. It is anticipated though, that under the conditions of 2022 as contrasted with those of 1787, this general skeleton would constitute a vast improvement of the corrupted evolution that has transpired over the intervening two hundred thirty-five (235) years.

While careful design of the structure of the Confederation will of course be necessary, it is anticipated that conceptually the functioning thereof should not be problematic. Conceptually, though, the functioning of the Federations could pose some consideration.

There theoretically is the danger from a smaller federation that its officials will have greater opportunity to interfere in the liberty of its citizens as a consequence of the government having fewer responsibilities and fewer disparate segments of society to distract itself. However, this may be sufficiently offset by its capacity to craft tailored rules for its fewer discrete segments rather than general rules which, by necessity, will not be able to accommodate all of a broad range of segments.

In any event, a solution of this type should obviate many of the problems, Nay, the evils, that exist presently. It is left to abler minds than that of the author to refine this solution more perfectly.

WAYNE A. SMITH
Sanilac County, Michigan USA
26 February 2022

Secularism in Defense of Ignorance

Regrettably there are not a few who conceive that the language “Congress shall make no law respecting an establishment of religion” permits, if not mandates, the establishment of a secular state. Some may even fancy that the United States should approach the concept of such a state that has been adopted by France. This would be tragic.

France admittedly has a unique legal framework where the laïcité principle was in incubation for over two (2) centuries. However, as demonstrated by a most-recent abuse of this principle that is discussed in the New York Times “Another Hijab Furor Hits France, Over a Mother on a School Trip” article, its application yields egregious results and certainly should be avoided by all other legal systems.

Being offended appears to be a salient motivating sentiment these days. While in certain instances it could be a legitimate grievance, the character of the putative offense is the determining factor.

Ad hominem assertions are one set of offending assertions that generally should be castigated. However, an expression that the opinion of another is unfounded, imprudent, or unwise — or, perhaps, even just stupid — should never be restrained. Even more offensive is when an effort is made to restrain isolated actions of a person who is thereby expressing their own opinion.

The wearing of a hijab certainly is encompassed within the latter category. It is isolated in that it does not impinge upon or restrict either the liberty or freedom of another. And it is but the expression by the wearer of their own opinion, in this case of religious beliefs.

It does suggest that the wearer believes their opinion and beliefs are superior to those of persons who hold contrary opinions and beliefs. But are there not a diversity of opinions and beliefs? And is there not a value in this diversity as it allows an inducement, or at least an opportunity, for assessment of one’s own opinions and beliefs?

Homogeneity has many benefits; but they are best embraced and pursued in discrete communities. As duality is the rule in all systems, in order to preserve homogeneity, heterogeneity must also be preserved.

Here, those objecting to these public displays are seeking to suppress contrary opinions and beliefs. But the expression of opinions and beliefs, either verbally or non-verbally, best enables the preservation of them. These efforts at restriction obviously are destructive of both heterogeneity and diversity.

Even more abusive are restrictions that evince religious hostility or restrict religious diversity. Unlike actions that have common activities as a focus — and therefore have a greater capacity to unjustifiably impinge upon the liberty of another — religious opinions and beliefs are inherently of an abstract character. For this reason, as well as the very character of the focus of these beliefs, they have historically always been afforded greater protection. (It is of course recognized that history records numerous acts of violence perpetrated in the name of religion, but these almost universally constitute repudiation of those religious beliefs and thus do not invalidate the aforesaid assertion.)

The policy of laïcité had its origins in the French Revolution as a reaction to the power of the Church under the monarchy. Excessive power of the Church was deemed inconsistent with “Liberty, Equality and Fraternity”. But is excessive power concentration in the state an appropriate remedy for perceived ills?  For:

How is suppression of the expression of opinion consistent with Liberty?
If all are Equal, how can some opinions be more equal than others?
Does not relegation of some opinion to disfavored status in fact destroy Fraternity?

A Free State permits all actions of its citizens that do not impinge upon vital interests of another. These include all expressions and displays of religious opinions and beliefs. Secularism though seeks to suppress those expressions and beliefs by purging them from the public arena. It then by circumscribing and abbreviating the scope of those opinions which it deems permissible is in service of ignorance.

Let us then pray that this malignant contagion never infests our shores, and that we may succeed in retrenching the misconceived abbreviation of this liberty inflicted by our Courts in incipient service of this foreign doctrine.

WAYNE A. SMITH
Sanilac County, Michigan USA
24 October 2019

Jefferson’s “Wall of Separation”

[The below are posts made by the undersigned in different fora, and now are incorporated here. These are provided both to memorialize them, and as background for the succeeding post.]

06/23/2019:

It is possible, as noted below, that Jefferson was aware of Roger Williams’ opinions. (I have no knowledge of Madison’s awareness thereof.) The issue though is the construction of the Free Establishment clause, and I tender that Mr. Chief Justice Waite, in Reynolds v United States (1879), followed by Mr. Justice Black, in Everson v Board of Education (1947), misconstrued the prohibition against any “law respecting an establishment of religion or prohibiting the free exercise thereof,” as requiring “a wall of separation between church and State”, as enunciated by Jefferson in his letter to the Danbury Baptists.

First, it of course was Madison that proposed in the First Congress the amendments that would, in part, become the Bill of Rights. While Madison and Jefferson agreed on many things (e.g. Kentucky and Virginia Resolutions), they certainly had differing opinions also. Further, Jefferson had no role in those amendments; when Congress passed the bill consisting of the proposed amendments to be submitted for ratification, Jefferson was still in France. How then Mr. Chief Justice Waite could find that Jefferson’s opinion “may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured” is more than a bit surprising.

Second, while scholarly opinion differs on the origin of the phrase and what was understood by Jefferson thereby, there is some support that his opinion was parallel with that expressed by Roger Williams more than a century prior. (The fact that both Williams and the Baptists were opponents of the Congregationalists seems to me more than a bit material to the issue, as will appear below.) There is little dispute that Williams was not in the mainstream of thought on the question. Likewise, I would modestly tender that, even if Jefferson intended what was later inferred by SCOTUS, neither was he in the mainstream.

Third, it would appear that Jefferson’s missive was intended more for political benefit than intended as a legal or philosophical exposition. It thus should earlier and now not have received the impact it was afforded.

New England, and Connecticut in particular, was the stronghold of Federalist politics. Providing support to Federalist opponents then was to the benefit of the Democratic-Republicans. According to Dumas Malone, perhaps his preeminent biographer, Jefferson circulated a draft of the letter only to his Postmaster General and Attorney General, his chief consultants on New England, for their comments. Malone concludes that, by the letter, Jefferson “was seeking to encourage the dissenting minority in Connecticut and to rebuke the politico-religious rulers of that commonwealth.” The “politico-religious rulers of that commonwealth” were the Congregationalists.

Malone does not indicate that it was also circulated to his Secretary of State, Madison. Further, my scanning of the correspondence between Jefferson and Madison during the last quarter of 1801 and the first few days of 1802, the letter to the Baptists being dated January 1, 1802, discloses no reference to it. If Jefferson had intended it to be “an authoritative declaration” on the First Amendment, would he not have also elicited Madison’s comments thereon?

The Reynolds and Everson decisions are now of course precedent. But, as we all know, precedent has not necessarily been without error. In this instance Jefferson’s metaphor resulted in an Historical Fiction that regrettably produced much misdirection in this jurisprudence.

06/24/2019:

I am modestly familiar w/ 17th Century Massachusetts, having in my long-ago youth studied a decent number of the works of Perry Miller and Edmund Morgan; I’m currently, in my “spare time”, sporadically revisiting some of Prof Miller’s works. These though of course dealt primarily with Massachusetts Bay’s theological, rather than political, structure.

I would concur that it appears Massachusetts Bay’s theocracy “went off the rails” as essentially being in conflict w/ their theology. One of the pronouncements of the Westminster Confession of Faith is that:

“God alone is Lord of the conscience, and hath left it free from the doctrines and commandments of men which are in anything contrary to his Word, or beside it in matters of faith or worship. So that to believe such doctrines, or to obey such commandments out of conscience, is to betray true liberty of conscience; and the requiring an implicit faith, and an absolute and blind obedience, is to destroy liberty of conscience, and reason also.”

Now admittedly when the Long Parliament caused the Westminster Assembly to be instituted, the Arbella had already sailed. Still, the attitude and practices of Winthrop et al ought not to have been at significant variance w/ those of his compatriots who remained behind.

Further, while Archbishop Laud was not installed as such also until after the sailing of the Arbella, his dominance and hostility should have been known by those in Boston. If one finds autocracy in England obnoxious, can one justify it in Boston?

Perhaps the conundrum can be justified by the necessity of contemporaneously establishing both the church and government in a virgin territory. (I’m currently listening to Bradford’s “History of the Plymouth Settlement”, and will find it interesting how it resolved this question. While the religious polity of the Separatists in Plymouth was different from their Boston counterparts, their theology was essentially the same.) Still, Boston’s variance in what it should have done seems indisputable.

The purpose then of the Establishment Clause isn’t questioned. My dispute is w/ the misuse of Jefferson’s metaphor — in Reynolds, Everson, and Justice Ginsburg’s Dissent — which has unduly expanded this purpose. Part of the abuse is Jefferson’s use of the dichotomy of “Church and State” whereas the Establishment Clause (as well as the Free Exercise Clause) instead utilizes the term “religion”; the distinction has been noted previously, and different conclusions drawn as a result. While it can be argued that the policy of Jefferson and Williams (assuming the latter was the inspiration for the former) was preferable, I still find little evidence for it being the proper basis of construction of the Establishment Clause.

WAYNE A. SMITH
Sanilac County, Michigan USA
24 October 2019

U.S. Constitution | PHILOSOPHICAL VISTAS

Category Archives: U.S. Constitution

Rescission of the Constitution for the United States of America — To enable better “securing the Blessings of Liberty”

[A PDF version of this article, including the footnotes thereto, may be downloaded from here.]

On November 3, 2020, I transmitted the following message to my State Senator, along with a suggested application bill:

“Subject : Article V Convention Application Bill

On this Election Day it seemed to me that perhaps the best mode for participation, given the regrettable apparent irreconcilability in our nation, would be to propose the submission by you of a Bill for a Convention of the States, pursuant to US Const, Art V.

Accordingly, I submit the attached for your consideration and potential action.”

A suggested application in generic format can be downloaded from here.

As many conceive and as the author reluctantly concurs, there then existed a “regrettable apparent irreconcilability in our nation”; this assessment was articulated by diverse voices, from across the spectrum consisting of both liberal and conservative proponents, from “elite” and from “ordinary” exponents. This irreconcilability has only been accentuated during the ensuing fifteen months.

While the polarization is between both various segments within society as well as government units of the nation, the author apprehends that the catalyst is an excessively-powerful National government. Rather than restrict itself strictly to the enumerated powers granted to it, it has expanded its reach to innumerable arenas of the liberty, and even of the freedom, of its citizens. Accordingly, the possibility of a radical restructuring of the National government should be seriously considered; by this I suggest the repeal of the Constitution for the United States of America and its replacement by a new instrument of government.

* * * * * * *

The evolution of the settlement of our Nation essentially followed the historical course of community formation. Initially, local enclaves were established; most of these habitations though were pursuant to commercial grants from the English Crown rather than autonomous individual and group migration into virgin territory. Many of these grants allocated territory to these adventurers greatly in excess of those enclaves first inhabited.

Initially the magistrates of those enclaves only governed locally since habitation had not expanded beyond their limited peripheries. Yet, as the magistrates’ authority extended to the boundaries of these grants and various inhabitants of these enclaves migrated to new localities within those boundaries, their authority likewise expanded to encompass them — resulting in a commonwealth embracing numerous communities and the subordination of the initial enclave thereto. Thus, though the inaugural local body polities constituted the foundation of these commonwealths, they did not remain as the predominant civil order but rather were incorporated within and subject to the commonwealth.

This then resulted in the Colonies, and eventually the States, being the sovereign bodies. We then are compelled to consider the powers and remedies available within the context of State jurisdiction rather than local jurisdiction.

Nevertheless, in assessing whether fundamental changes to governmental structure are necessary, as well as the parameters thereof, we must constantly remember core concepts and axioms. For these constitute the foundation upon which any governmental edifice must be structured; repudiation of these concepts and axioms, and substitution instead of an artificial composition will only introduce fragility and the failure and destruction of the edifice.

The author conceives these concepts and axioms to consist of the following:

  • Neighborhoods initially were, and remain still, the core unit of habitation. (This was propounded in the first volume of the author’s Interstice Amid the Fabric of Life essay, The State of Primordial Mankind.) The most-frequent interactions transpire between persons in close physical proximity and regular intercourse with each other and from which their identities are embellished.
  • Neighborhoods then are described and delineated by the radius of normal interaction between the majority of contiguous inhabitants. This interaction will allow the development of common identities and a network of mutual supply of physical necessities and reciprocal assistance and support, both physical and moral.
  • The smaller the political entity, the less the diversity of its inhabitants.

Thus, though we are compelled to recognize the States as the operative entity, we are also compelled to recognize the surpassing importance of the local civil orders and their utilization as the primary expression of the civic will. The justification for this assertion is further confirmed by an examination of the purpose and limitations of these civil orders.

* * * * * * *

The initial stage of the inquiry is the consideration of the inextricable limitation on their authority; for the prime proscription on their powers consists of those inherent rights of its inhabitants which are beyond their capacity to invade. As argued previously by the author, no person, individually or collectively, has the authority to alienate his Primary Natural Rights. Only Secondary Natural Rights are capable of alienation; even then the alienation must be express, unambiguous and unqualified, and restricted to the context which induced the alienation thereof.

Therefore, if the inhabitants of a locality elect to establish a commonwealth for it, the only powers they can grant to it are the powers to regulate Secondary Natural Rights. The necessary corollary, since a commonwealth can only exercise the powers granted to it, is that its powers then are limited to the regulation of these Secondary Natural Rights; even then the regulation of those rights must be both uniform and subject to the express and innate restrictions upon those powers.

Thus, governmental powers are inherently and inextricably limited. The initial and basic limitation consists of the scope of power delegation, for the state cannot exercise a power that it was not granted. This scope is inextricably proscribed as the citizens of a commonwealth are entitled to delegate to a government only those powers whose exercise will generally restrict the Civil rights of at least a majority of the citizens of the commonwealth. In addition to the prohibition against a government exercising power that would restrict the Primary Natural Rights of its citizens, it is limited to regulating only the portion of those additional Civil rights, viz, those which do not constitute Primary Natural Rights, that also constitute Civic rights. There, however, are further reasons for this conclusion.

A more-important, albeit conceptual, limitation consists of the role of a commonwealth and the powers it is entitled to exercise in the performance of this role; if we first isolate the basic purpose of the commonwealth then we better delineate this role. The basic purpose of a commonwealth is to prevent, as far as practicable, an abbreviation of the scope of Liberty available to each individual in the natural order. Hence, the role is to eliminate, or at least ameliorate, conditions that adversely affect at least a majority of its citizens, viz, constitute general problems within the commonwealth.

By this formula the powers that can be exercised gradually diminish, in both scope and degree, the greater the population and geographical extent of the commonwealth — as within the most geographically-restricted commonwealth the impact that any target condition may exert upon the citizens will be more general and tend toward commonality due to the relative homogeneity of those citizens, while within the most geographically-expansive commonwealth (“federal commonwealth”) any target condition that may exert general impact upon the citizens will be few and extraordinary due to the relative diversity of those citizens. The most local commonwealth then is implicitly granted the greatest quantum of power to eliminate or ameliorate adverse conditions within its boundaries, whereas the federal commonwealth is implicitly granted the least quantum of these powers.

Hence, the powers to which the commonwealth is confined — and which constitute the limit of those delegated to it, unless indisputable evidence to the contrary is tendered by it — are those proper and necessary for the performance of this role and the discharge of this function. In this performance and this discharge, the commonwealth is obliged to ignore problems that are only transient and limited within the body of citizens for which it was instituted. Any other standard would implicate the commonwealth intervening in a myriad of potentially-minuscule controversies, with any boundary line beyond which it should refrain being difficult to define and envision.

Objection will presumably be made that this standard will allow the abuse of, by potential abbreviation of rights that should be afforded to, minority segments of the citizenry. Facially this objection would be well-taken. The solution, however, is the formation of a multi-tiered framework of commonwealths, progressively devolving as far as practicable to the most localized jurisdiction. By such a framework those minority segments will have the capacity to constitute a majority in a localized commonwealth and thereby preserve the rights afforded to them.

* * * * * * *

Does the current structure or practices of government in the United States of America conform to the foregoing standards? Clearly they do not.

By virtue of historical development the States have paramount jurisdiction over the local civil organs; the latter, except for limited functions are wholly subordinate. Instead, the author has proposed that it is the local civil organs that should perform the majority of proper and necessary functions and hence possess most governmental power. Nevertheless, given this historical development, there is little present recourse other than to accept the States as the primary unit.

However, the question of the National government is wholly of another class. The extent to which it has grossly exceeded its constitutional limits and eclipsed the status and roles of the State and local civil organs is malevolence indeed. By endeavoring to do too much, it has necessarily antagonized large swaths of the diverse segments in the country; for while policies can contain various exceptions, any policy has to be essentially uniform and general — and no policy can be sufficiently uniform and general to accommodate such disparate diverse segments.

Hence, a dramatic restructuring is in order. Of what form might it consist?

It is supposed that numerous alternative might be suggested. But the author is bold enough to propose one possibility that, it seems to him, should revert inter-governmental relationship closer to the design originally envisioned, and thereby better “secur[e] the Blessings of Liberty”.

This proposal consists of:

  • the passage of bills by two-thirds (2/3) of the States applying for a Convention of the States;
  • the calling by the U.S. Congress of a convention pursuant to these applications;
  • the convening of the convention;
  • the proposal at and approval by the convention of an amendment rescinding The Constitution of the United States, thereby reverting the several States to their full sovereign capacities, or the approval of a new Constitution that provides for and thereby constitutes an amendment rescinding The Constitution of the United States;
  • the formation of a minimum of, say, nine (9) federations between contiguous States, which could conform to:
    • historical, cultural, or unique geographical characteristics, such as, for example:
      • New England,
      • the Mid-Atlantic States,
      • the South,
      • the Northwest Territory States,
      • the Louisiana Purchase States,
      • the Mexican War States, and
      • the Western Coast (including Alaska and Hawaii); or
    • the current divisions of the U.S. Courts of Appeal; or
    • other combinations not yet identified.
  • the formation of a confederation between these various federations.

The chronology of the foregoing stages of this proposal might be differently manipulated. However, it is tendered that this is a framework that ought to be given serious consideration.

* * * * * * *

In 1787 there admittedly were significant differences between the States. These were the result of various factors, including the different groups of adventurers who founded the colonies as well as the divergent religions to which the respective inhabitants adhered.

Nevertheless, as the substantial majority of the immigrants to the colonies were of British origin, these citizens perceived they were endowed with the inherent and established rights of Englishmen. As a result of this common historical knowledge and perception, the similarities between them were more profound than their differences and effectively submerged, or at least subordinated, any dissimilarities.

Hence, a National government was not regarded as likely to be oppressive since there would exist a common body of citizens of similar mind and experience ready and prepared to resist any tyrannical encroachments. Moreover, there was significant dispersion of the inhabitants within the various States. This relative isolation of the citizens, from each other and from the seats of government, constituted substantial obstacles to any effort to infringe the Liberties of them by any particular factions or control by the respective governments.

These conditions, however, soon experienced eradicable alteration — compromising these protections and, ultimately, these principles. The initial, as well as ultimate, cause was the vast accretion of territory controlled by the United States of America. This geographical expansion, proceeding at various times and occasioned by a variety of circumstances, permanently corrupted the carefully-designed polity.

By enabling the multiplication of the number of potential States it presented the specter of lessened cohesion between the existing and new States; for the lesser the number of jurisdictions the greater the capacity for them to unite on proposing or opposing certain policies, with the converse situation the greater the number of jurisdictions. This then presented both the opportunity and justification for the National government to expand its role and power by entry into this void. Thereby was the equilibrium in the Federal system, between the National government and the State governments, imbalanced.

These new territories also provided the opportunity and incentive for new and expanded immigration into the country, as the new regions and resources enticed the settlement and exploitation of them. This immigration exponentially increased the number of citizens of the country in the aggregate; moreover the diversity of the nationalities, and their accompanying national experiences and heritages, of the citizens was necessarily increased. As a result of this increased quantity and diversity the prospect of uniting on proposing or opposing certain policies was impeded, inasmuch as, one, a greater mass of persons always renders accedence to a common position more difficult and less likely, two, these greater dissimilarities rendered consolidation into a uniform position more difficult, and, three, these different traditions introduced the factor of willingness, or at least accentuated the volume of adherents thereto, in acceptance of, rather than resistance to, authority. Thereby, with reduced meaningful opposition, was the continued momentum of the juggernaut of National authority unabated.

The augmented national territory augmented also its power, both in isolation and relative to other countries. The first effect thereof was to induce it to expand its defense establishment and capabilities. As a normal consequence it was then induced to exercise this capability relative to other countries.

The exercise of this capability resulted in the international expansion of the country, both in the form of new territories — some by conquest and some by the exercise of monetary might incident to economic and military might — and the permanent presence within other countries. The latter is exhibited both in the economic influence over and foreign military establishments in numerous countries by the United States of America.

By all of these factors the authority of the National government was expanded to gargantuan proportions. We are now Reaping the Whirlwind. The cavalier and virtually uninhibited exercise by the National government of its Article I and Article II powers, whether real, presumed, assumed, or seized, has strained the fabric of the country with the resulting tension approaching or being at the breaking point.

Accordingly it appears to more than a few isolated malcontents that a dramatic reconfiguration of this country is necessary. The within proposal is but one of many that could be a solution by which retrenchment of concentrated central power is realized. It though appears to the author that the necessity of this retrenchment is beyond cavil.

A sufficient number of Federations of various States — with substantial powers reserved to those States, and a substantial portion of those powers progressively reserved to the local jurisdictions therein — would not only enable geographical segmentation of diversity in those jurisdictions and thereby obstruct suppression of it by more populous segments of different characteristics in different jurisdictions, but would preserve Liberty by this division of power. A Confederation of these federations would maintain national unity, albeit of a more-restricted scope and a more-restrained National government.

The author does not contend this is an ideal framework; but nothing designed by mortal man is ever ideal. It is anticipated though, that under the conditions of 2022 as contrasted with those of 1787, this general skeleton would constitute a vast improvement of the corrupted evolution that has transpired over the intervening two hundred thirty-five (235) years.

While careful design of the structure of the Confederation will of course be necessary, it is anticipated that conceptually the functioning thereof should not be problematic. Conceptually, though, the functioning of the Federations could pose some consideration.

There theoretically is the danger from a smaller federation that its officials will have greater opportunity to interfere in the liberty of its citizens as a consequence of the government having fewer responsibilities and fewer disparate segments of society to distract itself. However, this may be sufficiently offset by its capacity to craft tailored rules for its fewer discrete segments rather than general rules which, by necessity, will not be able to accommodate all of a broad range of segments.

In any event, a solution of this type should obviate many of the problems, Nay, the evils, that exist presently. It is left to abler minds than that of the author to refine this solution more perfectly.

WAYNE A. SMITH
Sanilac County, Michigan USA
26 February 2022

Secularism in Defense of Ignorance

Regrettably there are not a few who conceive that the language “Congress shall make no law respecting an establishment of religion” permits, if not mandates, the establishment of a secular state. Some may even fancy that the United States should approach the concept of such a state that has been adopted by France. This would be tragic.

France admittedly has a unique legal framework where the laïcité principle was in incubation for over two (2) centuries. However, as demonstrated by a most-recent abuse of this principle that is discussed in the New York Times “Another Hijab Furor Hits France, Over a Mother on a School Trip” article, its application yields egregious results and certainly should be avoided by all other legal systems.

Being offended appears to be a salient motivating sentiment these days. While in certain instances it could be a legitimate grievance, the character of the putative offense is the determining factor.

Ad hominem assertions are one set of offending assertions that generally should be castigated. However, an expression that the opinion of another is unfounded, imprudent, or unwise — or, perhaps, even just stupid — should never be restrained. Even more offensive is when an effort is made to restrain isolated actions of a person who is thereby expressing their own opinion.

The wearing of a hijab certainly is encompassed within the latter category. It is isolated in that it does not impinge upon or restrict either the liberty or freedom of another. And it is but the expression by the wearer of their own opinion, in this case of religious beliefs.

It does suggest that the wearer believes their opinion and beliefs are superior to those of persons who hold contrary opinions and beliefs. But are there not a diversity of opinions and beliefs? And is there not a value in this diversity as it allows an inducement, or at least an opportunity, for assessment of one’s own opinions and beliefs?

Homogeneity has many benefits; but they are best embraced and pursued in discrete communities. As duality is the rule in all systems, in order to preserve homogeneity, heterogeneity must also be preserved.

Here, those objecting to these public displays are seeking to suppress contrary opinions and beliefs. But the expression of opinions and beliefs, either verbally or non-verbally, best enables the preservation of them. These efforts at restriction obviously are destructive of both heterogeneity and diversity.

Even more abusive are restrictions that evince religious hostility or restrict religious diversity. Unlike actions that have common activities as a focus — and therefore have a greater capacity to unjustifiably impinge upon the liberty of another — religious opinions and beliefs are inherently of an abstract character. For this reason, as well as the very character of the focus of these beliefs, they have historically always been afforded greater protection. (It is of course recognized that history records numerous acts of violence perpetrated in the name of religion, but these almost universally constitute repudiation of those religious beliefs and thus do not invalidate the aforesaid assertion.)

The policy of laïcité had its origins in the French Revolution as a reaction to the power of the Church under the monarchy. Excessive power of the Church was deemed inconsistent with “Liberty, Equality and Fraternity”. But is excessive power concentration in the state an appropriate remedy for perceived ills?  For:

How is suppression of the expression of opinion consistent with Liberty?
If all are Equal, how can some opinions be more equal than others?
Does not relegation of some opinion to disfavored status in fact destroy Fraternity?

A Free State permits all actions of its citizens that do not impinge upon vital interests of another. These include all expressions and displays of religious opinions and beliefs. Secularism though seeks to suppress those expressions and beliefs by purging them from the public arena. It then by circumscribing and abbreviating the scope of those opinions which it deems permissible is in service of ignorance.

Let us then pray that this malignant contagion never infests our shores, and that we may succeed in retrenching the misconceived abbreviation of this liberty inflicted by our Courts in incipient service of this foreign doctrine.

WAYNE A. SMITH
Sanilac County, Michigan USA
24 October 2019

Jefferson’s “Wall of Separation”

[The below are posts made by the undersigned in different fora, and now are incorporated here. These are provided both to memorialize them, and as background for the succeeding post.]

06/23/2019:

It is possible, as noted below, that Jefferson was aware of Roger Williams’ opinions. (I have no knowledge of Madison’s awareness thereof.) The issue though is the construction of the Free Establishment clause, and I tender that Mr. Chief Justice Waite, in Reynolds v United States (1879), followed by Mr. Justice Black, in Everson v Board of Education (1947), misconstrued the prohibition against any “law respecting an establishment of religion or prohibiting the free exercise thereof,” as requiring “a wall of separation between church and State”, as enunciated by Jefferson in his letter to the Danbury Baptists.

First, it of course was Madison that proposed in the First Congress the amendments that would, in part, become the Bill of Rights. While Madison and Jefferson agreed on many things (e.g. Kentucky and Virginia Resolutions), they certainly had differing opinions also. Further, Jefferson had no role in those amendments; when Congress passed the bill consisting of the proposed amendments to be submitted for ratification, Jefferson was still in France. How then Mr. Chief Justice Waite could find that Jefferson’s opinion “may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured” is more than a bit surprising.

Second, while scholarly opinion differs on the origin of the phrase and what was understood by Jefferson thereby, there is some support that his opinion was parallel with that expressed by Roger Williams more than a century prior. (The fact that both Williams and the Baptists were opponents of the Congregationalists seems to me more than a bit material to the issue, as will appear below.) There is little dispute that Williams was not in the mainstream of thought on the question. Likewise, I would modestly tender that, even if Jefferson intended what was later inferred by SCOTUS, neither was he in the mainstream.

Third, it would appear that Jefferson’s missive was intended more for political benefit than intended as a legal or philosophical exposition. It thus should earlier and now not have received the impact it was afforded.

New England, and Connecticut in particular, was the stronghold of Federalist politics. Providing support to Federalist opponents then was to the benefit of the Democratic-Republicans. According to Dumas Malone, perhaps his preeminent biographer, Jefferson circulated a draft of the letter only to his Postmaster General and Attorney General, his chief consultants on New England, for their comments. Malone concludes that, by the letter, Jefferson “was seeking to encourage the dissenting minority in Connecticut and to rebuke the politico-religious rulers of that commonwealth.” The “politico-religious rulers of that commonwealth” were the Congregationalists.

Malone does not indicate that it was also circulated to his Secretary of State, Madison. Further, my scanning of the correspondence between Jefferson and Madison during the last quarter of 1801 and the first few days of 1802, the letter to the Baptists being dated January 1, 1802, discloses no reference to it. If Jefferson had intended it to be “an authoritative declaration” on the First Amendment, would he not have also elicited Madison’s comments thereon?

The Reynolds and Everson decisions are now of course precedent. But, as we all know, precedent has not necessarily been without error. In this instance Jefferson’s metaphor resulted in an Historical Fiction that regrettably produced much misdirection in this jurisprudence.

06/24/2019:

I am modestly familiar w/ 17th Century Massachusetts, having in my long-ago youth studied a decent number of the works of Perry Miller and Edmund Morgan; I’m currently, in my “spare time”, sporadically revisiting some of Prof Miller’s works. These though of course dealt primarily with Massachusetts Bay’s theological, rather than political, structure.

I would concur that it appears Massachusetts Bay’s theocracy “went off the rails” as essentially being in conflict w/ their theology. One of the pronouncements of the Westminster Confession of Faith is that:

“God alone is Lord of the conscience, and hath left it free from the doctrines and commandments of men which are in anything contrary to his Word, or beside it in matters of faith or worship. So that to believe such doctrines, or to obey such commandments out of conscience, is to betray true liberty of conscience; and the requiring an implicit faith, and an absolute and blind obedience, is to destroy liberty of conscience, and reason also.”

Now admittedly when the Long Parliament caused the Westminster Assembly to be instituted, the Arbella had already sailed. Still, the attitude and practices of Winthrop et al ought not to have been at significant variance w/ those of his compatriots who remained behind.

Further, while Archbishop Laud was not installed as such also until after the sailing of the Arbella, his dominance and hostility should have been known by those in Boston. If one finds autocracy in England obnoxious, can one justify it in Boston?

Perhaps the conundrum can be justified by the necessity of contemporaneously establishing both the church and government in a virgin territory. (I’m currently listening to Bradford’s “History of the Plymouth Settlement”, and will find it interesting how it resolved this question. While the religious polity of the Separatists in Plymouth was different from their Boston counterparts, their theology was essentially the same.) Still, Boston’s variance in what it should have done seems indisputable.

The purpose then of the Establishment Clause isn’t questioned. My dispute is w/ the misuse of Jefferson’s metaphor — in Reynolds, Everson, and Justice Ginsburg’s Dissent — which has unduly expanded this purpose. Part of the abuse is Jefferson’s use of the dichotomy of “Church and State” whereas the Establishment Clause (as well as the Free Exercise Clause) instead utilizes the term “religion”; the distinction has been noted previously, and different conclusions drawn as a result. While it can be argued that the policy of Jefferson and Williams (assuming the latter was the inspiration for the former) was preferable, I still find little evidence for it being the proper basis of construction of the Establishment Clause.

WAYNE A. SMITH
Sanilac County, Michigan USA
24 October 2019