Abstract:

A minimal constitutional condition

by MCB


The writer endeavours to explain the bases for minimal-consitutional government, arguing for federalism while drawing a few parallels to the Swiss example. The federal Constitution for Switzerland goes back to 1848 and was inspired by the Constitution for the united States of America, older by some sixty years. But whence does a "government"'s "authority" derive? Since "Nothing comes from nothing" is a general governing principle in law, lawful authority must have a lawful origin. The origin of all power in a modern state are the sovereign men and women that inhabit it: a deceivingly simple principle, illuminating the world since Thomas Jefferson wrote the US Declaration of Independence in 1776.

The uniqueness and the robustness of Jefferson's Declaration are discussed in brief. It is pointed out that the wording clearly spells out that human beings have rights (and not just some privilege) that are inherently given to them by the Creator. By force of these rights they hold the power of sovereignty, of which they only delegate parts to governments, as necessary. This Declaration remains unique, in that it does not appear to have gathered power of law anywhere, but possibly within the United States through indirect reference in their Constitution (more exactly in the Ninth & Tenth Amendment).

Therefore, authority flows from the individual human beings ("the people") to "states" that receive limited enumerated powers: by federating among themselves, in their turn they transfer part of those powers to a central entity by way of a federal constitution.

The author is conscious that much more ought to be said about concepts like "state" and "law" and proposes to return later on these points. It is also observed that the so-called "European Union" has doubtful foundations in right: it does not appear that the sovereigns of the different states ever properly delegated the power of federating, nor that they properly reviewed and approved post-factum constitutional alterations. Also, the sheer existence of these procedural necessities is indication of power abuses during the negotiations.

Which state jurisdiction is responsible for any citizen is then obtained by crawling back up the tree, to its root. Federal law is limited to the relevant powers indicated in the Constitution; each State is governed by its own constitution, its powers being limited to those that the People choose to delegate, less those retained for the central government but incremented with those not forbitten to the states by the federal Constitution. Every other right and power remain with the individual citizens. State laws are bound to its enumerated competences and by federal Constitution and laws; delegation to local units (counties or districts) is also a possibility. Townships have power of rules (ordinances) to implement superior laws.

This is the simplest order for a modern state that attempt to form a rightful society: it is doubtful that it was ever implemented anywhere; and even actual regimes continuously usurp rights of the People they're supposed to serve. Thus, readers who find themselves emprisoned by a regime that has significantly deviated from this simple procedure probably have good cards for a trial -- or for a revolution. The same applies for the powers of the States: and in fact they powers are continuously whittled away, not in the course of law, but by the same de facto approach utilized to disenfranchise individual citizens -- by fraud, coercion and force (in accordance to the saying: Might makes right!). Therefore, the States' privileges against the central power also deserve to be defended.

Just as significant is a proper balance among all powers and all regions: the separation of powers and the bicameral structure of the parliament are but devices to ensure this limitation of statutary domination. But all sort of additional measures are opportune: for instance, in prescribing the election of the seven members of the Federal Council by the Federal Assembly (i.e. the two chambers sitting in common session), the swiss constitution affirmed that no canton can have more than one person elected to a Council. Now, a few years ago, having decided that his new representative just had to be a woman, the socialist party nominated to the Assembly a union leader with a flippant personality -- who was promptly not elected. To avoid at all cost the election of a male politician (in fact, a man was regularly elected but avoided disgrace only by promptly renouncing to accede), an additional lady was nominated, a mirror copy of the first one, but less cheeky. This new lady, however, was a citizen of the Berne Canton, therefore not eligible since a Bernese gentleman already sat in the Council. Such details cannot be allowed to stop politics, and accordingly Ruth Dreyfuss "moved" rapidly from Berne to Geneva, and appeared before the Assembly with brand new and "regular" papers: she... was elected. Thus, legislators and lawyers provided a further demonstration of the high esteem in which they hold laws and rights, and the institutions showed all their respect for their legitimate sovereigns. Thus, this year, "small and old-fashioned" Switzerland has a woman president, who acceded to the Council... against the constitutional rules!

For statists, there is a simple way to avoid the repetition of such minor imbarassments: let's change the Constitution. By happenstance, it was also this year, last February 7, that the Swiss people had to decide whether to accept the abolition of the cantonal clause -- depicted in the media as just "an obsolete complication" in the election process for the Federal Council. (Yes, pity the poor politicians: their job in complicating our lives is tough enough, they well deserve some simplification, don't they?) I'm sorry to have to report that the brainwashing by the complacent slaves has worked well, and the clause is now no longer in our Constitution.

One thing has not changed: political jokes have a high educational value, but nobody laughs! 'Cause a comparison between the minimal condition described above and the statist reality that attempts to constrain us is rather reason for weeping!

(You might have noticed that, throughout the above, never was the issue of "democracy" raised -- strange, isn't it? Yet another subject for a future discussion.)

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