Contrary to a certain nostalgic nationalist myth that still
endures, the US Constitution as first conceived was never intended to limit
government power. The primary purpose of the Convention of 1787 was to increase federal power, as the older constitution
of 1776 (i.e., the Articles of Confederation) was regarded by centralizers as
being too “weak.” The older constitution was built on a consensus model, and
required acquiescence from a supermajority of member states to do much. The
overwhelming preponderance of government power lay with the states themselves,
which were in their own right too weak to demand much from their citizens.
Nonetheless, this loose union of states had functioned well enough. The states,
working in voluntary union, had fought off the most powerful empire of the
eighteenth century during the Revolution. The Massachusetts state militia had
put down Shay’s Rebellion without any federal help. Americans, for the
most part, were more free and better fed than the populations of Europe, the
wealthiest region of the world. Thanks to the liberal ideology spread by
the Revolution, slavery was in decline nationwide. Indentured servitude was on
the way out. The restrictive feudalism of old was disappearing.
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Yet, the wealthy elite,
like Hamilton, Washington, and Madison (in his counterrevolutionary phase),
wanted something else. They wanted a federal system that could force payment of
federal taxes. They wanted a bigger navy. They wanted a federal army that could
march into the interior and threaten farmers with destruction, as Washington
did during the Whiskey Rebellion. In short, they wanted a Constitution that
would centralize power, and grow it.
It was the opponents of these “Federalists” who demanded the
only part of the constitution that ever actually limited power. The
Anti-Federalists demanded amendments that would protect local communities from
federal power. They eventually got their bill of rights, but of course the
federal government has always sought to interpret the bill’s amendments in
a way that expands federal power. Or, the federal government just ignores it
altogether.
But let’s say for the sake of argument that the Bill of Rights
and the Constitution are one in the same and that the purpose of the Constitution
is to limit the power of the state. By this standard, it is clear that the
Constitution has failed.
For evidence we need only look around us. Virtually nowhere do
we find that the Constitution places any meaningful obstacles in the way of
federal power.
Obamacare, for instance, requires that Americans purchase health
insurance or be punished with an additional tax. Where does the
Constitution provide the federal government with the power to coerce people
into purchasing certain products? Nowhere. Yet the Supreme Court has declared
this constitutional.
The PATRIOT Act, of
course, enables the federal government to freely spy on countless Americans
with no probable cause. The accused are not permitted to defend themselves in
open court, for reasons of “national security.” The privacy of Americans has
been effectively abolished. The US Constitution does not prevent this in any
way.
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And then there is the federal war on drugs. Once upon a time, it
was accepted as common knowledge that the federal government did not have the
power to regulate intoxicating substances. This is why it was necessary to pass
a new constitutional amendment allowing for alcohol prohibition. Then that
amendment was repealed. Later, federal judges and politicians decided that the
meaning of the Constitution had mysteriously changed to now allow for the
federal government to dictate what we all could smoke or eat after all.
The same was once true of immigration policy. Until the 1880s,
few even tried to assert that the federal government could close borders or
round people up and deport them. It was accepted that the Constitution made
this a state and local matter. And then the feds changed their mind, and
what was one minute unconstitutional was constitutional the next. The same
thing happened with federal legislation on abortion.
In many cases, of course, these provisions that are apparently
in violation of the Bill of Rights and Article I were justified on the grounds
that they are “necessary.”
And “necessity” overrules any concern for constitutionality
virtually every time. It was “necessary” that federal spy agencies be able to
monitor all our communications. Because of terrorism, you see. It was “necessary”
to put Japanese Americans in “internment” camps. That, of course, was
“constitutional” also. Only decades later, when it became politically expedient
to do so, did the Supreme Court reverse itself and decide that concentration
camps are unconstitutional.
But the point has been made. If a future “emergency”
requires that some other group of
people—say, people who refuse “stay-at-home” orders or federally mandated
vaccination—be rounded up and incarcerated en masse, do not
doubt this will be regarded as perfectly constitutional. If it is decided
to empower federal agents to confiscate privately held guns, there is no
doubt a “public health crisis” or “emergency” will be cited to ensure that
this is deemed constitutional, too.
At this point, who
would be naïve enough to think the federal government would
limit itself from any “necessary” act just because it is unconstitutional?
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Advocates for private gun ownership can chirp about how “the
Second Amendment” protects them. But if a critical mass of politicians,
pundits, and voters decides the Second Amendment is null and void, the
Constitution will be interpreted as “necessity” dictates.
We’re likely to see something similar with the First Amendment.
It appears to be only a matter of time until an alliance of Washington
politicians and Supreme Court justices determine that speech opposing, say, gay
marriage is “hate speech” and punishable by fines and incarceration.
And then, of course, there are the countless federal laws that
control every aspect of everyday life from what one can buy or sell
to whom one can hire and with whom one may do business.
Are these powers listed under
the “enumerated” powers of the Constitution? Do they violate the Bill of
Rights? Virtually no one cares. Which means it doesn’t matter. It’s
constitutional if the politicians (which, of course, includes the lawyers in
robes we call “judges”) say so.
So, when it comes to
the Constitution’s ability to restrain government power, the conclusion is
obvious: that scrap of parchment is an obvious failure, and it is apparent
that the text of the document is insufficient to prevent interpretations of the
text which empower the federal government rather than limit it. It is also
apparent that the public and their representatives are uninterested in limiting
federal power. I claim no novelty in pointing this out, of course. More astute
observers recognized the impotence and failure of the US Constitution decades ago. As Murray Rothbard wrote in 1961:
From any libertarian,
or even conservative, point of view, it has failed and failed abysmally; for
let us never forget that every one of the despotic incursions on man’s rights
in this century, before, during and after the New Deal, have received the
official stamp of Constitutional blessing.
And before Rothbard,
there was Lysander Spooner, who noted:
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the Constitution is no
such instrument as it has generally been assumed to be; but that by false
interpretations, and naked usurpations, the government has been made in
practice a very widely, and almost wholly, different thing from what the
Constitution itself purports to authorize….But whether the Constitution really
be one thing, or another, this much is certain—that it has either authorized
such a government as we have had, or has been powerless to prevent it. In
either case, it is unfit to exist.
In other words,
appealing to the text of the Constitution to claim illegitimacy for the latest
government power grab is pointless and irrelevant to the task of actually
limiting the power of the state. The de facto status
of the Constitution is that it positively authorizes every new “despotic
incursion” the federal government wishes to initiate.
In turn, everything the federal government wishes to do is
ultimately constitutional. So long as the public tolerates it.
And it’s this final
piece of information that is the key to the puzzle. So long as the public
tolerates it, it will be done. Words on parchment are useless in opposing this. The beliefs of
the people who wrote the Bill of Rights—that is, a group of laissez-faire liberals from the late eighteenth
century—mean nothing if the public doesn’t agree with them. And virtually no
American today agrees with the Anti-Federalists of old that the federal
government must be kept limited, weakened, and confined to a small number of
tasks. If no one agrees with the philosophy behind the Bill
of Rights, few will care if its provisions are violated.
Yet, this philosophy—a philosophy we
call liberalism or “classical” liberalism—was once the most popular in Europe
and in the United States. Over time, it ceded ground to the socialists, the
mercantilists, protectionists, and other advocates of government privilege for
favored groups. The only way forward at this point to to rebuild liberalism’s
popularity from the ground up. This requires scholarship, activism, teaching,
writing, debate—and time. Demanding obedience to a long-disregarded document
does nothing. For far too long the party of laissez-faire and
liberalism thought some documents from two hundred years ago would protect them
from a government run amok. They were wrong.
Ryan W.
McMaken is the editor of Mises Daily and The Austrian. Send him mail.
