Law profs: the Constitution means whatever we say it means

Everyone who knows anything about the U.S. legal system knows that Congress has the exclusive power to appropriate money for the government to spend. Right? And we know that the Obama administration is locked in negotiations with congressional Republicans over spending — with the Republicans refusing to raise the government’s authorization to borrow more money unless the White House agrees to more spending cuts.

What you don’t know, though, is that some people — including a law professor at George Washington University — are advancing the notion that maybe Congress doesn’t have to approve the spending anyway.

Here’s the insane theory. After the War Between the States, the 14th Amendment had a clause to make sure that the Union’s war debts were paid. It simply says, “The validity of the public debt of the United States, authorized by law … shall not be questioned.” Administration officials as prominent as Treasury Secretary Timothy Geithner have raised the possibility of applying that clause to claim that Congress can’t stop the administration from borrowing more money. As insane as that sounds, serious and sober people are advancing the idea with a straight face.

More and more, we’re seeing that law professors are shaping what the Constitution and our laws mean. Sadly, their guiding principles are ideological rather than what actual words in the Constitution say. Constitutional scholar Walter Olson says it’s no surprise, because lawyers and law schools have been coming up with excuses for the last hundred years or so about why society needs to be guided more and more by them.

Olson’s recent book, “Schools for Misrule: Legal Academia and an Overlawyered America,” tackles the issue of how law schools have taken this much power upon themselves. In a book forum at the Cato Institute — where he’s a senior fellow — Olson was recently fascinating and entertaining in his discussion of the issue. I highly recommend taking the time to listen to or watch the event from this past March.

U.S. Founding Father John Adams wrote of the need to have “a government of laws, and not of men.” More and more, though, we have a government of men — some elected and some simply making up intellectual cover for those men — who do what they want, not what the law says. Ever since the beginning of the so-called “Progressive era,” we’ve seen intellectual garbage trotted out to support whatever those who want control would like to do. The Constitution didn’t change. The people who claimed the right to guide the laws merely made up reasons to change what the words of the document meant.

I say all that to make a simple point. I’m not trying to shame politicians into following the law. They’re not going to. I’m not trying to shame law professors into telling the truth about what words mean. They’re not going to do that. I’m simply telling you that you can’t trust these people with your future. In a statist system, the people at the top hold the power and they also hold the power to determine what the words which limit their power mean. The result is that it’s a very one-sided arrangement between government and governed.

The only fair arrangement is one that’s truly two-sided, where both parties have an incentive to live up to their bargain. Politicians don’t have such an incentive, because some politician of one of the major parties is going to be elected, no matter what. They’re only squabbling over who gets the power over you, not whether to exercise it. No, the only fair system is one that you can choose to opt out of. If you don’t have the legal and practical ability to opt out of a contract — whether it’s a sales contract or labor contract or “social contract” — it’s not really a contract. It’s just slavery — with someone else owning you.

The solution isn’t to somehow talk the state into agreeing that it’s abusing the power it was given. It’s not going to agree to that. It’s going to keep taking more power. The solution is to get rid of the state and create competitive governance. Only that can give individual people real power.