Max Borders

The Original is Sacred

To many Americans, the U.S. Constitution is more than a document; it’s a sacred covenant that has guided the nation since its inception. In many respects, it is the cornerstone of the American experiment. 
It’s crucial, therefore, to acknowledge its value before discussing the need for its reform—or for an entirely new foundation of law. Even documents people hold sacrosanct must evolve to meet the challenges of the day—such as checking the enormous outgrowth of federal power.
If it can’t evolve, we must begin anew.

However

Despite our deep respect for the original Constitution, it is clear that several aspects have proven insufficient. But insufficient for what?

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

If the original Constitution is worthy of our reverence, the Declaration is worthy of “our lives, our fortunes, and our sacred honor.”
In other words, if the government, as constituted, fails to ensure our rights, then we must not keep it in amber out of misplaced patriotism. We must either amendor start over, deriving our just powers to do so from our consent, which ought never to be hypothetical nor tacit but rather explicit.
I don’t know about you, but I don’t consent to this grotesque empire. It is time for another revolution, carried out through peaceful but powerful underthrow.

Unresolved Weaknesses of the Original

• The Ambiguity of Loophole Phrases

Phrases like the “general welfare” clause have been stretched to justify a wide range of arbitrary federal actions. The vagueness of such terms leaves too much open to interpretation, allowing successive governments to grow their power, expand their reach, and exceed their intended mandate.

• The Failure of Federalism

The Constitution aimed to balance power through federalism, or the division of governance between federal and state bodies. However, the modern reality shows a stark imbalance in favor of national power, eroding any subsidiarity principle, such as those found in Amendments 9 and 10.

• Lack of Checks and Accountability

While the Constitution envisaged a system of checks and balances, the contemporary political landscape shows an imbalance, with executive orders, legislative loopholes, and the national-security- or “deep” state, sidestepping the intended design—which was to restrict what the authorities could do.

• Unrestrained Fiscal Policy

The original Constitution did not adequately address the issue of debt spending, resulting in a staggering national debt that threatens the nation’s future. The Founders did not intend to see an apparatus of coercive redistribution yoked to the backs of the productive or attached as umbilical cords to the needy in exchange for votes. They wanted a people to thrive in a culture of thrift, charity, and mutual aid—not to languish in taxation, debt, and dependency. 

• The Military-Industrial Complex

The Founding Fathers cautioned against standing armies and foreign entanglements, but the current Constitution has been unable to prevent the rise of a military-industrial empire after World War II. That empire not only projects power worldwide for ever-shrinking benefits and mounting costs, but it has turned its gaze inward to censoring and controlling the population.

• Incomplete Realization of Jeffersonian Ideals

The concept of “consent of the governed,” penned by Thomas Jefferson in the Declaration of Independence, remains unrealized. Citizens often feel disengaged from the decisions that most impact their lives, and “democracy” —crying your teardrop in the ocean and expecting the tide to turn—doesn’t cut it.

Five Pillars for a New Constitution

I’ve offered these elsewhere, but they bear repeating.

1. Principle of Consent

Only those who voluntarily sign the Constitution would be considered citizens with specific rights and duties, aligning perfectly with Jefferson’s “consent of the governed.” This would allow individuals to commit fully to the tenets of the new society, or defect, as prescribed in the Declaration of Independence.

2. Principle of Judicial and Common Law Supremacy

By prioritizing judicial rulings, especially those rooted in common law, over legislative and executive decisions, we establish a safeguard against governmental overreach and erosion of individual liberties.

3. Principle of Subsidiarity

Reforming the Constitution to emphasize subsidiarity would restore the intended balance between national and local governance. Any disputes over governance levels would be settled by the courts, adding an extra layer of accountability.

4. Principle of Self-determination

Groups of people should be able to join, secede, or form new jurisdictions through consensus. As a feature of foundational law, self-determination will breathe new life into the process of civil association by making governance more organic and responsive to communities.

5. Principle of Panarchy

This radical but compelling idea posits that individuals could choose their governance system without the location constraints. Imagine a world in which the “social contract” is not a birthright or talking point but a conscious choice made by people anywhere in the world, so long as they can avoid legacy powers and predatory leviathans—and, of course, honor their side of the agreement.
And in case you were wondering, we are absolutely suggesting that a more liberatory law can “colonize” the world—not by imposition, but by choice. In other words, if law can be chosen, why must it only be chosen by certain people born onto a certain patch of soil?

A Cosmopolitan Future

The Constitution of Consent should be open for adoption not just by Americans but by any individual, anywhere, who yearns to be free. 
In a hyper-connected world, governance must be equally agile and global, and these principles could serve as a cosmopolitan basis for law applicable across cultures anywhere in the universe. (Perhaps Elon Musk would adopt the Constitution of Consent as the Mars Constitution.) 
For more on this, see Srinivasan’s idea of The Network State.

Conclusion

A new Constitution built on these five principles (and others) would strengthen society’s fabric while addressing the weaknesses revealed over more than two centuries. It’s a daunting challenge but a necessary one, ensuring that the system of governance stays true to its founding ideals while evolving to meet the challenges of a new imperial age.