America’s Other Constitution | AIER

On this Constitution Day 2022, I would, if I could, strike the head at the first person who promoted the idea that America’s written constitution was better than the unwritten constitution of Great Britain. why? Because America also He had an unwritten constitution, one as important as his written counterpart, which sadly faded from view until he was eventually quietly assassinated by the Progressives and New Pages. The main question Americans face today is whether they will have the will to revive both of their Constitutions before it is too late.

When Americans talk about the “Constitution,” they are referring to the document written in Philadelphia in 1787 that was later amended. They are still aware of the existence of state constitutions but rightly understand that they cannot be more liberal than the federal document allows, as interpreted by the US Supreme Court (SCOTUS), the ultimate arbiter of the constitutionality of governmental laws and policies.

Long forgotten, despite referenced in the very important preamble to the Constitution, the Ninth Amendment, the Declaration of Independence, and other founding documents, it is the second unwritten U.S. Constitution. It consists of natural rights not expressly mentioned in the Constitution, natural rights so fundamental to liberty that the founders hoped that no republican government would dare to undermine or question them. They were wrong.

Although America’s unwritten constitution was vibrant and well understood in the eighteenth century, it slowly eroded and disappeared entirely by the early twentieth century. The deterioration of the unwritten US Constitution of Natural Rights made the New Deal possible and the late New Deal jurisprudence erased its last vestiges. in Wickard (1942), for example, the SCOTUS unanimously endorsed the power of the federal government to prevent a farmer in Ohio from growing wheat to feed his family.

The fear of some of its key components being challenged one day led to the partial codification of the unwritten constitution and its ratification as the Bill of Rights. Today, many of those first ten amendments to the Constitution are ignored, or at least challenged, despite their clear mandates that they are “inviolable.” But they remain more tangible than basic rights that have almost disappeared.

To fully explore the contents of the unwritten constitution would require a book-length treatment, one that takes natural rights much more seriously than Christopher G. Tideman’s 1890 book. The unwritten constitution of the United StatesA Philosophical Inquiry into the Fundamentals of American Constitutional Law. Tiedman shortened natural law to “freedom from all unnecessary legal restrictions to prevent harm to others; the right to do anything that does not involve trespassing or harming others.” But the mere recognition of “freedom from unnecessary restraint” puts most government regulations into question and embodies the spirit of the unwritten constitution, including three basic natural rights:

  1. Self Ownership It is not permissible to infringe upon him, except by virtue of the status of a newborn mother, a prisoner of war, or an due conviction for a crime. The Thirteenth Amendment eliminated the first two exceptions that had always been disputed. Self-ownership frees Americans from economic and political slavery. The latter implies complete physical independence, even during emergencies.
  2. pursuit of A profession of one’s choiceThe terms chosen by the individual may not be infringed. This would rule out frivolous professional licensing laws, all minimum wage laws, and the use of state power to benefit some individuals or businesses over others, even during emergencies.
  3. Relying on markets and other volunteer efforts, with the power of the state applied to solve perceived social problems only after voluntary means have been tried and found to be insufficient. as my next book lost freedom (AIER, 2022) Shows that early Americans equated voluntary attachment to political freedom. Instead of immediately asking what the government could do, they tackled the social problems themselves, voluntarily through the nonprofit. And they did so even during emergencies, including the civil war.

Tiedman explained in 1890, “In these days of great social upheaval, we applaud the action of the courts to seize these public declarations of rights as their power to place their ban on all legislative acts inconsistent with natural rights, though such acts do not violate any provision specific or special from [written] constitution.”

But even before Tideman wrote, the Supreme Courts were already dismissing the idea that they should consider “principles outside the Constitution, according to which [overreaching] Legislation might be condemned.” They did so by encasing the principles of the unwritten constitution with constitutional rights such as due process, on a large scale. In the 1877 case Bertholph vs. O’Reilly (74 NY 509), for example, the New York Court of Appeals held that “the right to life includes A person’s right to his own body in completeness and without cutting; The right to freedom and exercise of its powers and to follow a legitimate hobby to support life [emphases added]. ”

The circumvention tactic allowed the jurists to cite a text to justify their decisions, which initially continued in line with the founders’ views. In the above case, for example, the Court clearly stated that taxes should be for a “public purpose,” so it is clearly unconstitutional for governments to transfer property from one citizen to another. When progressives and the New Deals later succeeded in distorting basic concepts such as general purpose, public health, and due process, however, the increasingly forgotten unwritten constitution was no longer powerful enough to protect basic natural rights from government encroachment.

Since jurisprudence was no longer bound by basic principles, a successful progressive incursion simply served as a precedent for the next, allowing another, and another in a seemingly endless stream. A century later, the authoritarian government of the nation could not be recognized by the founders and founders. Subtle interference with free speech, an unscientific climate, masks, vaccines, shutdown mandates, massive redistribution of wealth to foreign and domestic friends, flaunting of unwanted but not repealed laws, and other unpunished atrocities were among their nightmares.

The unwritten constitution remains a dead letter, and the Bill of Rights, even the once sanctified First Amendment, suffers daily assault. I fear that Constitution Day will one day turn into Memorial Day. To prevent this horrific outcome, Americans must forcefully reaffirm their natural right to be left to do as they please unless their behavior clearly harms other Americans. However, they must be allowed to seek voluntary solutions before governments intervene under the constitution.

Robert E. Wright

Robert E. Wright

Robert E. Wright is a senior research fellow at the American Institute for Economic Research. He is the author (co-author) or editor (co-editor) of more than twenty major books, book series, and edited collections, including AIER. The best of Thomas Paine (2021) and Financial exclusion (2019). He has also authored several articles for important magazines, including American Economic ReviewAnd the Business history reviewAnd the independent reviewAnd the Special Projects MagazineAnd the financial reviewAnd the Southern Economic Review. Robert has taught business, economics, and politics courses at Augustana University, New York University’s Stern School of Business, Temple University, the University of Virginia, and elsewhere since his Ph.D. in History from the State University of New York at Buffalo in 1997.

Selected Publications

  • Reducing recidivism and encouraging disengagement: The Social Entrepreneurship Approach Journal of Entrepreneurship and Public Policy (Summer 2022).
  • The political economy of modern wildlife management: How marketing can reduce game abundance. independent review (Spring 2022).
  • “Sowing the Seeds of a Future Crisis: The Securities and Exchange Commission and the Emergence of the Nationally Recognized Statistical Rating Organization (NRSRO) Class, 1971-1975.” Co-author: Andrew Smith. Business history review (Winter 2021).
  • “AI ≠ UBI Income Portfolio Adjustment To Technology Transformation.” Co-author: Aleksandra Przegalinska. Frontiers in Human Dynamics: Social Networks (2021).
  • Liberty Befits All: Stowe and Uncle Tom’s Cabin. ” independent review (Winter 2020).
  • “Pioneer Financial News National Broadcast Journalist Wilma Seuss, NBC Radio, 1954-1980”. press history (Fall 2018).
  • “Delegating the Republican Model of Anglo-American Corporate Governance.” progress in financial economics (2015).
  • “The Pivotal Role of Private Enterprise in the Age of Transportation in America, 1790-1860.” Special Projects Magazine (Spring 2014)
  • “Corporate Insurance Companies in Antebellum America.” The article was co-authored by Christopher Kingston. Business history review (Fall 2012).
  • “The Deadliest Game: The Fencing Foundation.” The article was co-authored by Christopher Kingston. Southern Economic Journal (April 2010).
  • “Alexander Hamilton, Central Banker: Crisis Management During the United States’ Financial Panic of 1792.” Co-writer: Richard E. Silla and David J. Cowen. Business history review (Spring 2009).
  • “Transatlantic Capital Markets Integration, 1790-1845.” The article was co-authored by Richard Sella and Jack Wilson. financial review (December 2006), 613-44.
  • State “currencies” and the conversion to the US dollar: some confusions cleared. Co-writer: Ron Michener. American Economic Review (June 2005).
  • “Reforming the US IPO Market: Lessons from History and Theory,” Accounting, Business and Financial History (November 2002).
  • “Bank Ownership and Lending Patterns in New York and Pennsylvania, 1781-1831.” Business history review (Spring 1999).

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