During the eighteenth and nineteenth centuries, the party of laissez-faire and free markets—known today as “classical liberals”—often pushed a political program that included the adoption of written constitutions. The old liberals—such as the American revolutionaries and French bourgeois reformers—thought that written constitutions would offer a substantial barrier to abuses of state power.
The constitutional program of the classical liberals is not to be confused with its underlying ideology—what is today generally called “libertarianism.” Nonetheless, constitutionalism has been an important tactic favored by liberals/libertarians historically. That is, it was thought that written constitutions, as a means, would ensure liberal ends. The ideology of the classical liberals favored minimizing state power so that the non-state institutions—known as “society”—could grow and flourish free of state intervention.
Unfortunately, written constitutions have failed to achieve this goal. Throughout the new liberal states that arose from the late eighteenth century to the mid nineteenth century, central governments grew rapidly to achieve powers that would have been thought unthinkable even under the old monarchical regimes of Europe.
The liberals’ constitutional reforms failed to prevent rising taxation, growing bureaucracy, and military conscription within the national states that had ostensibly adopted liberal constitutions. This liberal project failed because the it embraced the idea that it was desirable to centralize and consolidate power within a single national state apparatus. Under most circumstances, this sort of centralization of power was considered by most to be a recipe for more powerful states. But, the liberals rather naïvely thought that the powers of these new, centralized “liberal” states would be limited and controlled through their written constitutions.
It didn’t work out that way. What happened instead was that the consolidation of state power within new, uniform, and national “constitutional” frameworks enabled states to overcome and abolish the older decentralized power structures that had previously impeded the state power.
After all, the liberal project assumed it was necessary to abolish all the old intermediating institutions of the old regimes, which had, admittedly, imposed their own limitations on the freedoms of residents. It turned out, however, that these institutions had also served to hobble the freedoms and powers of the central state. As Jörg Guido Hülsmann has pointed out, the constitutional program at first paved the way for liberal reforms. Yet, if ideological fashions change, the newly empowered “liberal” state quickly finds it now faces fewer real impediments to its power. Hülsmann writes:
[A]fter the zeal of the [liberal] reformers has ebbed away, nothing stands in the way of a further expansion of the state’s monopoly powers in other areas such as welfare, art, economy, etc. …
In the worst of all cases, and unfortunately these cases happen to be the majority, the [liberal] reforms are brought about by the creation of additional hegemonic bonds with a more encompassing political agency (centralization). To get rid of aristocratic privileges, the classical liberals first supported the king against the lesser aristocrats, and then concentrated further powers in the democratic central state to fight all regional and local forms of monarchism and aristocracy. Rather than curbing political power, they merely shifted and centralized it, creating even more powerful political institutions than those they were trying to supersede. The classical liberals thus bought their short-run successes with very burdensome long-run annuities, some of which we have paid in the twentieth century.
This is the reason why classical liberalism ultimately failed. It is important to realize that the quick successes of the classical liberals are not unrelated to the totalitarian schemes that plagued the past century. The fundamental fact is that the liberal reforms were not spontaneously adopted by the various local constituencies, but were imposed on them. It is true that this “technique” was very effective in realizing the classical-liberal program all at once in the whole territory controlled by the new democratic central state. Without it, this process would have been gradual, and it would have implied that islands of the Ancien Régime would have survived for a very long time. Yet like all mere techniques, this was a two-edged sword that would eventually be turned against life, liberty, and property.
Some of the more clever French liberals saw the mistake almost immediately. Historian Ralph Raico notes that once the old regime was swept away, the problem of the modern centralized state came into view. He writes:
The focus of all threats to individual freedom became the government itself. The Church, nobility, guilds and other corporations that, endowed with coercive privilege, had vexed the free functioning of men, left the stage, and across the gap created by their disappearance the individual and the state, for the first time, stood alone facing each other.
And now the liberals’ attitude toward the state underwent a change. Where previous French liberals had seen [in the state] a potential instrument for the establishment of liberty, and one that might at times even safely be used for the realization of certain “philosophical” values, writers like [influential French liberal Benjamin] Constant started to see a collection of standing threats to individual freedom: government is “the natural enemy of liberty;” ministers, of whatever party, are, by nature, “the eternal adversaries of freedom of the press;” governments will always look on war as “a means of increasing their authority.” Thus, with Constant, the chief articulator of his generation’s liberal ideals, we see the beginnings of classical liberalism’s “state hatred,” which, after the 18th century’s ambiguous attitude, marks its theory to the present day...”
Thus, what had begun as a naïve faith in the potential of centralized, liberal constitutions quickly become an acute awareness of danger of state power, regardless of its written constitution.
But much of damage had already been done. The attempt to switch over to a liberal-oriented polity via a stronger centralized state led to consolidated national states which quickly set to work undermining liberal gains. In the United States, for example, which perhaps, among national states implemented the most liberal national constitution, the situation almost immediately began to unravel. The initial highly liberal constitution was soon replaced by one that was much more centralist. Then, the supporters of more consolidated national power set to work centralizing power even more.
Raico writes that the Bill of Rights
was a heroic attempt to limit government, but very quickly the Hamiltonian and then the Whig tradition arose in America to expand the powers of the national government. Very quickly also, the national government’s own Supreme Court set itself up as the ultimate arbiter of the Constitution and interpreter of the Constitution. That’s very dangerous. What could be a protection against this? What could be a protection against a national government doing all kinds of things in the economy—protective tariffs, so-called internal improvements, pork for their contractor friends in the railroads, and printing money—that it forces on the people? What could prevent the federal government from doing that? ....
Now there seems to be no limit—no institutional limit, no theoretical limit—to what the national government can do. You say, “Well, we still have the Bill of Rights.” Well, we have the Bill of Rights, but the Bill of Rights has to be interpreted. It’s interpreted by the federal Supreme Court.
That is, once the federal courts agree with the anti-liberal forces promoting centralization, then there is no amount of centralization and state growth that will be deemed “illegal” or contrary to the constitution. This is because “legal” solutions to despotism such as written constitutions do not suffice to constrain state power. This process took longer in the United States than in many of the other national states built around liberal constitutions. But the end result was similar in all cases. Benjamin Constant, for instance, understood that:
All the constitutions which have been given to France have equally accorded individual liberty, and under the empire of these constitutions, individual liberty has been ceaselessly violated. The point is that a simple declaration does not suffice. What is required are positive safeguards; what is required are bodies powerful enough to employ in favor of the oppressed the means of defense sanctioned by the law.”
Realistically, however, these “positive safeguards” cannot be within the central government itself. That is, no “supreme court” or similar institution, if it is an extension of the central government itself, could be expected to act as a limiting factor on the very institutions the supreme court serves.
Many liberals nonetheless have sought solutions in contrivances that supposedly create “checks and balances” within the central government. This, however, has long been a common characteristic of the liberal constitutions that have to thoroughly failed to limit the powers of the state.
Rather, the only durable and realistic solution lies in dismantling the consolidated, constitutional state that the liberals erected. If our modern, overpowered states are the result of enfeebling local, independent institutions of the old regime, then the means of weakening the state lies in empowering similar institutions as a counterbalance to the national state. These independent institutions, motivated to protect their own prerogatives from the central state, will then be important allies in dismantling the state and undoing the centralizing process embraced by the early liberals.
In his own work on countering state power, Raico concludes that the response to the failure of the liberal constitutions is to deconstruct the state itself, largely through radical decentralization and secession:
So, what to do? Ever since I translated Mises’s Liberalism many years ago, and even before that, I’ve been interested in the history of classical liberalism, and most of my research has been concerned with that. I’m coming to a conclusion—which I held theoretically but feel more strongly about and hold, you might say practically, now—that there is no answer within classical liberalism. The liberals had no answer because they strove to preserve the state. I say, “held this view theoretically,” because I agree with Murray Rothbard, my old friend, that ultimately the kind of system we want is a system where individuals are empowered to select their own means of defense—their own, let’s say, defense agencies and their own courts, just as they select any other service of theirs. So, I held that theoretical view for a long time, but now, what I’m telling you is that it’s very clear that there is no way of salvaging “limited government.” It’s simply going to be getting worse and worse, so our more direct and immediate aim has to be to destroy the centralized state, to do away with the centralized state in stages.
Specifically, Raico points to secession as the means of reversing the process of centralizing political power within national states. In, this, of course, he follows many classical liberals—i.e., Gustave de Molinari, Charles Dunoyer, Thomas Jefferson, and John Locke— who did not follow the centralist liberal strain that was, unfortunately, so common and so successful.
It is important to note that when Raico says there is “no answer within classical liberalism” he is referring to the means, not the goals. Raico never wavered from his ideological liberalism in favor of the weakening of states and the undermining of state power. Raico is correct to conclude, though, that the old liberal political tactics of constitutionalism, state building, and universal suffrage—have clearly failed.
