Head Banging or the Constitution

by
Gary North

Recently
by Gary North: You
Are Washington’s Collateral

I am an Old
School Presbyterian Calvinist, a position so conservative within
Presbyterian Calvinism that it was relegated to the fringes after
1870. And if you ask me, they were kind of squishy.

With respect
to politics, I voted for Goldwater in 1964. In 1966, I voted for
William Penn Patrick instead of Ronald Reagan in the race for the
Republican nominee for governor of California. I thought Reagan
was too liberal.

I was a speaker
at the National Affairs Briefing Conference in Dallas in 1980, which
launched the New Christian Right.

I sent my children
to Christian day schools.

With this as
background, I want to present my case for Constitutional social
conservatism.

CONSTITUTIONAL
SOCIAL CONSERVATISM

I begin with
a premise: “If a federal law is not in conformity to the judicial
principles and precedents in American colonial law in 1788, it is
unconstitutional, unless a Constitutional amendment has authorized
it.” This is simple to understand. It means that the Constitution
was intended by the Framers to be the source of fundamental law
restricting politicians and judges who hold office in the United
States government. The Constitution was ratified by voters on that
basis in 1787-88. That which is not authorized by the Constitution
is prohibited.

Conservatives
say they believe this. But do they?

The Constitution
of the United States does not authorize the following:

1.
Federal laws against pornography
2, Federal laws against alcohol
3. Federal laws against drugs
4. Federal laws against homosexuality
5. Federal laws against abortion

Social conservatives
must decide: federal laws prohibiting any of the Big Five vs. Constitutional
law.

The Constitution
of the United States also does not authorize the following:

1.
Federal laws legalizing local pornography
2, Federal laws legalizing local alcohol
3. Federal laws legalizing local drugs
4. Federal laws legalizing local homosexuality
5. Federal laws legalizing local abortion

Social liberals
must decide: federal laws legalizing any of the Big Five locally
vs. Constitutional law.

The two groups
are generally agreed: Violate Constitutional law. This is
the problem for American liberty. American politics is a contest
over which group gets to decide which Constitutional restraints
to ignore.

This is not
how the two groups come to their donors. Each group pledges to extend
justice. Each group blames the other for undermining the Constitution.
Both groups are correct.

The social
conservative says he favors local initiative. Then he votes for
Washington politicians who interfere with local practices.

The social
liberal says he favors national justice. Then he votes for Washington
politicians who interfere with local practices.

The social
conservative is inconsistent. The social liberal is consistent.
So, the social conservative politician, when in office, attempts
to pass laws that set legal precedents for the social liberals to
use in the next election cycle: extensions of federal power. Then,
in some future election cycle, the social liberals repeal the conservative
laws by passing new laws that extend the power of the federal government.
The new laws make illegal local practices that social conservatives
favor. What the politicians do not do in this regard, the federal
courts do. In both views, the federal government becomes messianic.
It becomes a means of implementing federal control over local practices.
We have seen this in action ever since 1788. It has done what the
opponents of ratification said it would do, but on a scale undreamed
of by the Anti- Federalists.

The social
conservative goes to Washington vowing to bang heads locally. So
does the social liberal. This question does not occur to the social
conservative: “How much federal power must we consent to in order
to bang heads locally?” This question occurs all the time to the
social liberal. He has an answer: “More.” When push comes to shove,
this is the also the traditional social conservative’s answer.

So, the social
conservative finds himself defending the extension of federal power.
He insists that this is for a good cause.

Yet here is
the great irony: the word “social” means “voluntary.” The historic
position of American conservative political theory is this: The
state is not society. The historic position of the social liberal
is this: The state best represents society. We hear of “social
justice.” This is a code phrase for “welfare state.” We hear of
the Social Gospel. This is a code phrase for “welfare state.” Liberals
say “social,” but the really mean “state.”

In practice,
so do social conservatives. Officially, they defend free association,
but when push comes to shove, they join with liberals to vote in
favor of an expanded federal government. When it comes to assessing
the power of the state, both groups say “more.”

PORNOGRAPHY

This is the
representative case. Would a socially conservative Congressman vote
for a law restricting pornography? After all, it crosses borders.

The question
that I raise today is this: “How can you regulate pornography and
leave the Internet free?”

The pornographic
materials on the Web are close to unlimited. It costs nothing to
upload it. It costs nothing to download it. This is driving the
pornographic movie industry out of business. As the afficionados
say, “Smut yearns to be free.”

How can the
government stop the spread of essentially free digits? At what cost?
I don’t mean financial cost. I mean cost of lost liberty.

Censorship
was always based on control over the physical properties of the
media. It took printing presses. It took paper and ink. It took
distribution channels. It took retail outlets. The technique: Follow
the money. But when there is no paper, no ink, no printing press,
and the distribution channels are outside of the jurisdiction of
any specific national government, what is the technology of censorship?
Ask Hosni Mubarak.

The cost of
prohibiting something that is highly demanded and is free to the
customer approaches infinity.

So, how do
we stop the spread of pornography? By self-government.

ALCOHOL

Nationally,
we have been down this road. Prohibition gave the criminal syndicates
the money they needed to finance their entry into the other areas
of sin. It made the crime syndicates what they are today.

What stops
the spread of alcohol? Self-government.

There are local
laws against alcohol There are dry counties. I used to live in one
in Texas. At the edge of the county’s borders on all sides were
liquor stores. But the voters remained committed to prohibition.

What should
Congress do about the legalization of alcohol? Nothing. What should
Congress do about dry counties? Nothing.

DRUGS

What applies
to alcohol applies to drugs — all drugs. The analytical principles
are the same. So are the legal principles.

What should
the federal government do to stop the spread of hallucinatory drugs?
Shut down the Department of Education. The biggest drug emporium
in any zip code is the public high school. I have written about
this here: “How
to Win the War on Drugs.”

HOMOSEXUALITY

What does the
Constitution have to say about sexual behavior? Nothing. About marriage?
Only this: how to structure the tax code. My recommendation is simple:
get rid of the graduated income tax. That would end tax discrimination
for or against marriage.

ABORTION

Here, the federal
government has a position: there can be no laws against abortion.
That was a Supreme Court decision.

What is the
Constitutional way to deal with this? Simple: have a 50% plus one
vote in each branch of Congress to remove the issue of abortion
from the jurisdiction of the Supreme Court.

In
all Cases affecting Ambassadors, other public Ministers and Consuls,
and those in which a State shall be Party, the supreme Court shall
have original Jurisdiction. In all the other Cases before mentioned,
the supreme Court shall have appellate Jurisdiction, both as to
Law and Fact, with such Exceptions, and under such Regulations as
the Congress shall make (Article III, Section 2).

The President
has no say in this. Neither does the Supreme Court. Anyone who wants
to know if this is the correct view of this section should research
Ex Parte McCardle.

CONCLUSION

Social
conservatives need to decide: head-banging or the Constitution.

Social liberals
want to free up head-banging in these five areas, so as to have
more money to spend on head-banging in the areas of federal regulation
of the economy.

The correct
agenda for social conservatives is simple: vote for Congressmen
and Senators who follow these rules: (1) Constitutional authorization
of all laws; (2) reduced taxation; (3) budget in surplus; (3) debt
reduction; (4) de-funding of the executive. In one phrase: Shrink
the federal government. There is only one social conservative
who favors this agenda.

It isn’t Newt
Gingrich.

January
6, 2012

Gary
North [send him mail]
is the author of Mises
on Money. Visit http://www.garynorth.com.
He is also the author of a free 20-volume series, An
Economic Commentary on the Bible.