The Texas Constitution discussed on these pages is not the unwieldy document afflicted with more amendments than cows in Travis County, Texas (and which allegedly rules that Great State), but the “Texas Constitution 2000” <http://www.tcrf.com>, an attempt to corral a stampeding herd of Washington bureaucrats, dishonest politicians, and their various and sundry hired hands and/or hired guns. The latter is based on the truth that:
“The only thing necessary for the triumph of evil is for good men to do nothing.”
-- Edmund Burke (1729-1797)
The Texas Constitution 2000 is, therefore, an attempt to do something. And for this, it should be applauded. Unfortunately, from several points of view, it is a failed attempt. A valiant one, perhaps, but ultimately a near miss. It includes much that is worthwhile, but its flaws are sufficient to doom it in anything like its current draft. The good news is that it provides an excellent example on which to base a discussion of constitutional principles.
A review of the website <http://www.tcrf.com> is in fact recommended, including the introduction of what the Texas Constitution 2000 purports to do, and the Constitution draft itself <http://www.tcrf.com/constitution/English/declaration-English.html>. The first is a good preface, if only because it provides the reader with a sense of what the author(s) of the effort are attempting to accomplish, and a suggestion of their mind set.
For example, the impression one gets in a first or second reading of the Texas Constitution 2000 is that the author(s) are angry at the intrusion of government in their lives and business affairs. This is very understandable, as the invasive nature of government today is horrendous to say the least. Unfortunately, most of the articles and sections appear to be reactions to an admittedly deplorable state of affairs in the United States and Texas, but any attempt to guard against previous offenses by innumerable “thou shalt not do” clauses does not really solve the problem.
The well known conservative, William Buckley, in writing in “National Review” many years ago, defined two types of conservatives. One was the Convenience Conservative, the individual who was opposed to intrusions of government into individual lives because it was far more convenient for these individuals if the government stayed far away. These were the people who didn’t want to pay taxes (while still receiving the benefits of corporate welfare), particularly on their substantial incomes, but otherwise seemed to owe no allegiances other than to greed and self-interest. The “Texas Constitution 2000” comes across as being in this category.
But Buckley also defined a second brand of conservative: the Conservative of Principle. This type of individual defines certain fundamental principles on which all other laws and rules derive. The key is that one may say the only valid law is that of “Common Law”, and then allow all of the other regulations, laws, ordinances, and rules to evolve from there. In the opinion of most thinkers on the subject, in order for a constitution to have any validity, it must be based on fundamental principles, a truly enlightened philosophy -- instead of merely “Thou shalt not” enumerated over and over.
(Note that such an approach also provides for a smaller, more versatile document -- and not an unwieldy code of law -- as in the present Constitution of the State of Texas. Just as in the Sinking of the Spanish Armada, it was the smaller, highly maneuverable ships of Drake that totally outmaneuvered the huge, clumsy Spanish men of war. And of course, Drake won the battle.)
Interestingly, in Article 1, Section 3, of Texas Constitution 2000 [all further notations of “Art X, Sect. Y” refer to this same document], there is a reference to one fundamental principle, that of Common Law. This is the principle that states in essence that any and everyone is allowed to do anything they want provided that they do not infringe upon the equal rights of other individuals, or upon their property. But rather than “bury” this fundamental right in the body of the text, if would be better if it were prominently displayed under the “Declaration of Intent”. (It should also add the other covenant of Common Law: That everyone does what they agree to do -- in this case, as in Article 3, Section 3: “knowingly, voluntarily, and intentionally agreed to... by contract.”)
Another primary suggestion is that the “Declaration of Intent” be retitled the “Declaration of Principles”, and list as one of its first principles, an adherence to Common Law (and have this defined at the outset). Other principles might include: 1) the formation of a Republic, 2) the right to a Trial by Jury for all crimes and torts, 3) the idea of Restricted Government, and 4) Seventh Generation Acknowledgment.
In the case of the Republic, this should be defined as the situation where any and all individuals have certain inalienable rights which cannot be breached even by a majority or larger percentage of all the other individuals. Furthermore, the government is not an entity into itself, but merely an instrument of the people, and nothing can be done against an individual on the basis of “preserving the government.” Such things as “national security” or “the peace and serenity” of any government cannot then be used as an excuse to keep a government in power. [Keep in mind that if “national security” were defined as the security of all the individuals, then there may be the possibility of doing something in the best interests of, say, 90% of the people, even if some individuals may be forced to do something they don’t like (even with appropriate compensation).]
One of the questions that might be posed here is: “Under what circumstances is it moral for a group to do that which is not moral for a member of the group to do alone?” The key is that government is not an entity with volition, but that all governmental functions are carried out by individuals, and that these individuals must be held accountable in the same manner as all other individuals.
Critical to the concept of the Republic is the idea of Trial by Jury by the accused’s peers. The Constitution of Texas 2000 did go into many of the details of juries (and did rightly place considerable power with Grand Juries). Details may or may not be appropriate to the constitution, but enough details will be needed, if only to ensure the concept is clear (as opposed to simply detailing its operation in all circumstances).
The fundamental principle of Trial by Jury is indeed absolutely critical to a Republic and a free state. Thomas Jefferson wrote, “I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.” John Adams wrote about jurors, “It is not only his right but his duty... to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”
Accordingly, before a jury deliberates, each member should consider: 1) Is this a good law? 2) If so, is the law being justly applied?, 3) Was the Bill of Rights honored in the arrest?, and 4) Will the punishment fit the crime? Lysander Spooner has written that “in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of laws.”
Inasmuch as the Constitution for the United States of America (and prior to that, the Magna Carta) guarantees the right of juries to invalidate or nullify bad laws, how long do you think the Infernal Revenue Service would continue if the citizens of this country were aware of their rights and were willing to stand up for them?
A fundamental point here is that if the fundamental principles of Common Law, Republic form of government, and Trial by Jury are held up as the basis of any constitution, then many of the evils and injustices that the “Texas Constitution 2000” argues against, are automatically eliminated! And they are eliminated on the basis of principle, rather than a response to all of the bad experiences of the past.
The third principle mentioned above is the principle of Restricted Government. Instead of a long constitutional litany of what the government is not allowed to do, why not specify that any government (Republic, state, county, or local) is forbidden to do anything, except those duties and functions specifically allowed by the Constitution? If a government is not specifically instructed or allowed to do an activity, it is unconstitutional and invalid. One doesn’t have to specify that the government can not levy taxes, unless such a levy is written into the constitution in the first place. This could greatly simplify the Constitution (and hopefully make it more useful). (The idea is to avoid the plague of laws for every conceivable activity, and resort instead to principles. There is also the danger that the exact wording can be used to establish a loop hole in the law, and thereby circumvent it.)
The Restricted Government Principle can be used to eliminate a lot of the sections in the “Texas Constitution 2000”. This might be particularly worthwhile, in that many of these sections are, seriously flawed. For example:
Art 1, Sect. 2: “inherent right of life... to natural death.” And if someone chooses to take their own life, for whatever reason? Limiting this to natural death implies the imposition of a religious or philosophical belief system of one individual or group on other individual. A spiritually-based Samurai would find this part very objectionable.
Art 1, Sect. 4: “inherent right of... the use of property”: Does this include polluting the river that runs through an owner’s property -- even when it obviously violates the rights of others (as in Art 1, Sect. 3)? How about turning the land into desert by poor farming/ranching techniques? How about increasing the salt level of the land by irrigation techniques so that future generations suffer? This is, in fact, a violation of the Common Law that elsewhere, the TX2000 claims to support.
[The latter concern -- and in fact, most environmental and pollution concerns -- might be covered by yet another fundamental Principle, Seventh Generation Acknowledgment. This implies that no decisions are made unless the effects of the decisions on the future seventh generation of the decision makers is taken into account first. This is really nothing more than long range planning, but does carry the implication (which many might not like) that individuals do not “own” the land, water, or air, but are merely “custodians” of these natural wonders. This is not an onerous restriction on anyone’s freedom, but rather a needed assumption of responsibility that -- because of Common Law -- the individuals whose free will and Liberty
Art 1, Sect 5: “Every individual has the inherent right of defending the life, liberty, or property of any individual using whatever force is necessary, through whatever means available, including the use of deadly force.” This gives every individual the right to defend the property of other individuals! So, if I see someone shooting game on your land, can I use deadly force to stop them (even if I don’t know if the hunter had your permission or not)? This clause, in my opinion, violates the free will of others in assuming that one person may use deadly force to prevent another from doing something the first person doesn’t agree with. One could even use this clause to justify killing someone attempting to have an abortion -- in that the fetus might be construed as “any individual”. Again, this is a religious bias that says that one person has the right to force another to go along with their belief structure. And whether or not one is for or opposed to the alleged right of abortion, “the use of deadly force” to “defend” the fetus or the right to abortion cannot be condoned. This whole idea really needs eliminating.
Art. 2, Sect 3: “Government shall never operate outside the limits of a budget which shall never exceed ninety percent of the revenue collected the previous year.” This clause is mathematically very strange for at least two reasons. First, the time factor in finding out the amount of revenue collected in one year, and constructing a budget which cannot exceed ninety percent of it, makes this untenable. Maybe with a time delay of one year between the “revenue year” and the “budget year” one might make this point go away. The second point, however, is a bit more difficult. The idea of a budget which can never exceed ninety percent of the revenue implies a 10% surplus each year. Furthermore, this surplus would appear to be cumulative. Pretty soon, all money would be in the surplus fund! Weird!
The idea of the government never issuing licenses, certificates, etc. (Art 2, Sect 7) is good, but if you use the Restricted Government principle, you don’t need it.
Art 2, Sect 8: “Government shall never promote, control, nor interfere with any religious or philosophical organization or activity.” What about a government’s response to a “Holy War”? What about believers/citizens who have decided to sacrifice children by burning them alive or sacrificing them to their religion?
Art 2, Sect 9: “Government shall never restrict nor control the free flow of ideas...” Need to add “information, news, and other forms of communication” to “ideas”, otherwise, this is a very good idea.
Art 2, Sect 11: “Government shall never operate, own, control, nor fund any means of education not specifically related to performing the functions of government authorized by this constitution.” This implies that all education is private (which will probably greatly increase the literary rate). However, here we’re dealing with children -- who, very importantly, initially do not have the ability to “knowingly, voluntarily, and intentionally” agree to what they’re being taught. This could constitute a violation of their free will if, for example, they’re taught only to be “sex slaves”, or some narrow religion which restricts them from ever guessing that there’s, perhaps, another way. The society (aka government) does have a duty here. But it is not a duty to restrict what a child is taught, but rather a duty to ensure that a child’s education is not restricted to the point of they’re not being educated to become free citizens. For example, the Government might set minimum standards to the educational system (be it private or religious schools, home schooling, etc). This governmental “intervention” can not be used to eliminate anything in the child’s exposure or education, but on the other hand, ensures that the children are not violated in terms of not knowing the whole truth. It is said that “ye shall know the truth and the truth shall make ye free.” Unless, a child, for example, has access to knowing what his or her constitution says and means, then they’re not free -- and the free state that one has envisioned in this constitution will very soon no longer be free.
Art 2, Sect 16: “Government shall never issue currency nor cause currency to be issued.” Nor prevent anyone else from doing so? This is a very thorny -- and fundamentally important -- issue. A one-line sentence does not quite do it justice. Is there any standard for the size and weight of gold and silver coins, for example?
Art 2, Sect 23: “Government shall never regulate the use of publicly owned rights of way.” What constitutes “publicly owned rights of way” if not government controlled? How does the “public” control them. Who regulates their use and/or maintenance? Keep in mind that without adequate avenues of physical communication, feudal and/or warlord states can proliferate. Are individuals required to constantly maintain the ability to force themselves along “rights of way”?
Art 2, Sect 24: “Government shall never impose emergency powers nor suspend any part of this constitution, neither in time of war nor for any other reason.” The potential need for emergency powers cannot be simply dismissed -- despite it having been severely misused during most of the time of the United States has been a sovereign entity . It would be far better to provide cases where it can be done -- but with severely restricted time and other limits. The clause as it stands seems to be somewhat naive. The rest of the world may not have this constitution, nor may it have the same principles, morals, or other societal functions which would be compatible with the TX2000.
General question: Does the Government have any duty to protect or serve its citizens?
Article 7: As for the thorny issue of a government supporting itself, it’s not viable to depend upon voluntary contributions. At the same time, individual and corporate income taxes are too invasive in terms of privacy (although an argument can be made that corporations should pay taxes -- lest they become “governments-in-fact” and do far more damage than any government of the people might even imagine). On the other hand, the one tax that seems most plausible is a “Resource and Disposal Tax”. Basically, this is an environmental tax in that the use of non-renewable energy sources, water, or other natural resources -- or the disposal of waste products (from the manufacturing or after use of the product) is a de facto levy on future generations (and a violation of Common Law), and thus cannot be ignored simply because of a preference for not having taxes. This is not a trivial issue, but sweeping it under the rug with a broad “no taxes of any kind” does not adequately address the issue.
The above critique may be a bit like saying, “Okay, tear it all down, we’ve got to start all over”, but there may not be much of an alternative. From one perspective, for example, the bit about education is so seriously flawed that it becomes a “dealbreaker”, wherein there is no possible support for the rest. One can appreciate the effort that went into the document, and it can be used for detailing much of what needs to be in a constitution and its supporting documents. Nevertheless, some sweeping changes are badly needed.
Also, one might note in the preface of <http://www.tcrf.com> some hints of the author or authors being more interested in guaranteeing themselves freedoms, which others do not automatically receive. For example, in “Make Your Own Decisions -- You will be able to make decisions that affect you and your family.” What about disagreements within the family? What are the children’s rights? Especially, under the premise of: “Control What Your Children Learn”, e.g. “You can even decide to have daily prayers and Koran readings. Or not.” Wouldn’t this include teaching your children to be slaves for you? What’s to prevent total subjugation of one’s children?
Finally, in the TX2000 Preface, we find:
“I. We hold that the foundation of this nation is that an individual's body, life, labor, ideas, thoughts, and material possessions that the individual has created or acquired without coercion are that individual's property and that no individual, majority, society, or government may legitimately take or control an individual's property without that individual's consent.” [It’s hard for the average individual to make a tree, but fortunately, the human only has to acquire ownership of the tree “without coercion”. And then the tree is chattel, and can be disposed of at will. What therefore prevents the same for a human being, i.e. a slave?]
“II. We hold that the foundation of our economy shall be the free market system unfettered by intrusions of government and based upon the free and voluntary exchange of goods and services.” [Capitalism might not be the best system, after all.]
“III. We hold that peaceful relations with other nations is based upon the concept of mutual respect and that war and other interference in the affairs of other nations serves only to destroy such peaceful relations. It is therefore declared that Texas shall remain neutral in the affairs of, and between, other nations.” [Hey! If you can pull it off, then more power to you!]
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