You may or may not have heard the furor of the day about something Bush said recently. Here's what it was.
GOP leaders told Bush that his hardcore push to renew the more onerous provisions of the [P.A.T.R.I.O.T.] act could further alienate conservatives still mad at the President from his botched attempt to nominate White House Counsel Harriet Miers to the Supreme Court.
"I don't give a goddamn," Bush retorted. "I'm the President and the Commander-in-Chief. Do it my way."
"Mr. President," one aide in the meeting said, "there is a valid case that the provisions in this law undermine the Constitution."
"Stop throwing the Constitution in my face," Bush screamed back. "It's just a goddamned piece of paper!"
I've talked to three people present for the meeting that day and they all confirm that the President of the United States called the Constitution "a goddamned piece of paper."
While a year ago I'd have likely had the same knee-jerk reaction of scathing anti-Bush criticism as everyone else, I actually found myself agreeing with him wholeheartedly. The Constitution is just a piece of paper.
Of course we both see it that way for entirely different reasons. He sees the Constitution as something getting in the way of his god-like status as an absolute ruler of men. I see the Constitution as merely the excuse for would-be despots like him to exist in positions of power in the first place. But it still seems ridiculous for him to say such a thing, since that very document set up the system by which he came to possess all his power in the first place. If it's really "just a piece of paper", then from where is he getting his power as President and Commander-in-Chief?
But still, I think he unintentionally hit upon a profound truth. Let's examine this. You can't deny that the Constitution is a piece of paper (parchment, actually). It's a piece of paper with some legalese on it, signed by a handful of people long dead, prescribing a system of government. The question is whether it's "just" a piece of paper. (I'll ignore the "goddamned" bit.) The primary purpose of the document is to provide the authorization for the US government and all its power. Indeed, if you ask any court or officer of the US government to explain from where its jurisdiction derives, it's always traced back to the Constitution.
But I ask the question, from where does the Constitution itself get its power? Certainly you can't get power from a piece of paper unless that paper has power to begin with. After all, I could write on a piece of paper a legal document that says you have to give me something that you own. I can even sign it. But were I to show you such a document and demand that you start loading the item into my truck, you'd just laugh. Or tell me to get out of your face. Anyone can see that such a thing is plainly absurd. A legal document created solely by me has no power and authority beyond the inherent power and authority that I myself possess as an individual. And I certainly don't have the rightful authority to demand that you give me anything of yours. Were I to forcibly take your belongings claiming that the document I wrote gives me the authority, the document would be merely the excuse for my use of force to dominate you. I would be nothing more than a bully trying to hide behind a piece of paper that I wrote -- an excuse that anyone can see is ludicrous.
There's only one situation in which a piece of paper such as that would have any rightful authority over you. That is, if you also signed it, freely and willfully agreeing to its provisions. Then, it becomes a legal contract, an agreement between men. And only in the uncoerced agreement between the parties involved is that piece of paper imbued with any moral or legal authority. And the power over you that the document would grant me comes not from myself, but from you, when you willingly granted it to me in exchange for whatever the contract says you'll receive in return.
Contrast this with the Constitution. Regardless of whether you agree or not, the Constitution is used as the excuse for those in power to employ force against you, to coerce, imprison, or enslave you, or even kill you, as they see fit. Why is it that the Constitution is not held to the same standard that all other legal documents must meet in order to be seen as right and just? After all, our government is supposed to derive its power from the consent of the governed. But in actuality, the government derives its power from mere force. Whether or not you consent isn't taken into account at all. If you don't believe me, just try using that as the defense when the government charges you with a victimless crime.
The only argument I've heard is that the consent to the Constitution is implied, and the implicit consent comes from voting, or through living in the geometry over which the US government claims dominion. But that argument seems weak to me.
First of all, people cannot choose where they're born, and until they become legal adults (as defined by the US government), most of them would be physically barred from leaving the country anyway. So they can't really be said to have chosen to live here. So from where does the consent come during that period? And even as adults, being unable or not choosing to leave this land isn't the same as choosing to be a citizen of the US government. It's simply that they were born here on this land and they are living here. None of the animals born and living here can be said to have consented to the US government. And the majority of people have even less choice about where to live than they do. After all, what laws regulate where birds can fly and in what trees they can perch? There are many that regulate the movements of humans.
Second, many people vote because they want to use the power of government to force others to behave a certain way. And even when that isn't the case, politicians who aren't willing to bend the laws to match the desires of wealthy entities are the exception rather than the rule. Because of this, many people who would otherwise have no desire to vote do so in order to prevent a wrong from being perpetrated against them by those who wield or seek to wield the power of government. That is, people are often forced to use the ballot in an attempt to coerce others, to avoid being coerced themselves. And in this, to use an analogy by Lysander Spooner, they're like men forced into battle, in which they must kill or be killed. Most men, not in such a situation, would have no inclination to fight and kill each other. It seems dubious to claim that voters consent to the whole system when they, in self-defense, utilize the only tool they see as giving them a chance to avoid a harm from being perpetrated against them by elected officials or others at the ballot.
But even ignoring that and assuming that nobody votes in self-defense, and that voting once in your life establishes an implied consent to the Constitution, that argument can only show, at the very most, that a majority of people consented to the Constitution at some point. (And given that only about 30-35% of the population votes in a given major voting year, and that it's usually the same people voting year after year, it's hard to say whether it's even a majority.) But I still say, what about the people who have never voted, and those who are barred from voting, such as the homeless, the ex-felons, and those under the age of 21? And what about the fact that election rigging is practically an institution in this country, going back to its earliest days? When the government has rigged an election, the result is not legitimate.
Both of those seem to be circular arguments anyway. It's pretty weak to argue that the government gets the right to exist from the fact that it already exists (it couldn't claim dominion over this land or enforce its system of self-propagation if it did not). And what about those who explicitly withhold consent? No implied consent could be argued in their case, for any reason.
At this point, people usually claim that since a majority (assuming it really is a majority) of people are assumed to have consented (implicitly), and since this is a democracy, majority rules. But again it's a circular argument, because it's only a democracy (actually a democratic republic, but these are equivalent in this case) because the Constitution says it is. So their argument only holds up if majority rule is morally right and just even outside the context of a democratic government already existing. But it doesn't seem that way to me at all.
Perhaps you've heard the saying "The purest form of democracy is a lynch mob." Do two people have the moral or legal right to kill or enslave a third person simply because they are two and he is one? What about three and one? Four? Is there any ratio of people by which the larger group has the moral right to dominate the smaller group simply because it's larger? Not a single person I've asked has thought so. A group of people may have the power to do so, but never the right. Thus, majority rule is not intrinsically right and is not a valid justification for forced government.
Two people agreeing amongst themselves to dominate a third solely because they are greater in number is simply barbaric and criminal. But the whole thing changes if all three have previously agreed to resolve disputes among themselves by vote -- then the two dominating the one is perfectly fine, as they have all agreed among themselves to live by that system, which they see as fair. So democracy is just and legitimate when all parties have agreed to the system. But otherwise, it's simply an excuse to exercise the power inherent in numbers to dominate others. That's what a lynch mob does.
Do you see the parallel? A contract is only proper when it's been freely agreed to by all parties. Otherwise it's just one person using a piece of paper as an excuse for his use of force. And a system of government is only just when it rests upon the free consent of all the governed. Otherwise, even if it's a "democracy", it's just one group of people using a piece of paper (in our case, the Constitution) as an excuse for their use of power to dominate others.
Our government does not care whether you consent to it -- it justifies its existence through its power alone. And without the consent of the governed, the Constitution truly is just a piece of paper.