Mises Wire

The Constitution Failed


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.

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 or 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.

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?

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:

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.

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