If liberty is so wonderful, why don’t we enjoy it in full? Why are our lives so heavily regulated and legislated by so many federal, State, and local agencies at such a high cost? What happened to the promise of liberty given in the Declaration of Independence and Constitution? The answers to those questions are bound up in human nature and the nature of governance in a democracy.
I will first address the human imperatives that conflict with liberty. I will then examine their effect on the Constitution, which has become the servant of privilege where it was supposed to be the protector of liberty; that is:
- Liberty is the negative right to be left alone — in one’s person, pursuits, and property — as long as one leaves others alone. “Liberty” encompasses what the Founders intended by “life, liberty, and the pursuit of happiness” in the Declaration of Independence. Because of its reciprocal nature, liberty necessarily is (or should be) a right enjoyed equally by all citizens.
- Privilege, by contrast to liberty, is a positive right, that is, a grant of special (unequal) treatment. Privilege, not being reciprocal, necessarily conflicts with liberty because a grant of privilege compels some to surrender their liberty so that others may enjoy special treatment.
Human Nature and Liberty
Here, I will say more about the impulses and machinations that undermine our feeble instinct for liberty. They are impulses and machinations that the Framers tried to keep in check, but which have nevertheless been given rein through the corruption of the Constitution. I will not be gentle, for there is too much at stake in what may well be a twilight struggle between liberty and the despotism that serves privilege.
Liberty Is Not a Paramount Human Instinct
As I wrote in Part III:
I would like to be able to say that liberty is a paramount human instinct, honed through eons of human existence and experience. But we are surrounded by too much evidence to the contrary, both in recorded and natural history. [See this and this, for example.] The social and intellectual evolution of humankind has led us to a mixed bag of rights, acquired politically through cooperation and conflict resolution, often predating the creation of governments and the empowerment of states. The notion that we ought to enjoy the negative right of liberty is there among our instincts, of course, but it is at war with the positive right of privilege — the notion that we are “owed something” beyond what we earn (through voluntary exchange) for the use of our land, labor, or capital. Liberty is also at war with our instincts for control, aggression, and instant gratification.
As I said more recently,
The superior consequences of liberty [see here and here] argue for its acceptance, not for its inevitability. If the state of liberty were inevitable simply because of its demonstrable superiority, we would never have had to fight any wars to acquire and preserve it, nor would America have traveled as far down the road to serfdom as it has in the past 70 years.
It is easy to endorse liberty in principle and yet be its enemy in practice. Many persons — perhaps most — simply lack the requisite temperament, or worldview. Thomas Sowell, in A Conflict of Visions: Ideological Origins of Political Struggles, posits two opposing visions: the unconstrained vision (I would call it the idealistic vision) and the constrained vision (which I would call the realistic vision). As Sowell explains, at the end of chapter 2:
The dichotomy between constrained and unconstrained visions is based on whether or not inherent limitations of man are among the key elements included in each vision….These different ways of conceiving man and the world lead not merely to different conclusions but to sharply divergent, often diametrically opposed, conclusions on issues ranging from justice to war.
Thus, in chapter 5, Sowell writes:
The enormous importance of evolved systemic interactions in the constrained vision does not make it a vision of collective choice, for the end results are not chosen at all — the prices, output, employment, and interest rates emerging from competition under laissez-faire economics being the classic example. Judges adhering closely to the written law — avoiding the choosing of results per se — would be the analogue in law. Laissez-faire economics and “black letter” law are essentially frameworks, with the locus of substantive discretion being innumerable individuals.
those in the tradition of the unconstrained vision almost invariably assume that some intellectual and moral pioneers advance far beyond their contemporaries, and in one way or another lead them toward ever-higher levels of understanding and practice. These intellectual and moral pioneers become the surrogate decision-makers, pending the eventual progress of mankind to the point where all can make moral decisions.
In sum, it’s all about trust. You can trust in people to do the right thing because it’s to their benefit to do so, as it is in free markets and free societies. Or you can tie people down, economically and socially, in a morass of statutes and regulations, such as those to which I linked in the opening paragraph.
Trust doesn’t mean an absence of rules, but the rules have only to be minimal, socially evolved rules of acceptable conduct, such as the Golden Rule or the last six of the Ten Commandments. The clearer and more intuitive the rules, the more likely they are to be enforced by self-interest, by fear of social opprobrium, and by pride in reputation — with swift, sure, and hard justice as a backup.
But none of that goes down well with the untrusting, who think that the road to happiness must be paved with hard-and-fast rules for everything and everyone (except those who break the rules, if they have certain racial, sexual, and socio-economic characteristics). Otherwise, how would people know what to do?
Beyond a worldview that oozes lack of trust — which is quite enough, in itself, to have sold us into semi-slavery to the state — there lies economic illiteracy, which fails to grasp such simple principles as these:
- Incentives matter. Taxes and regulations result in the reduction and misdirection of economic activity and social trust.
- There’s no free lunch. Government can’t provide something for nothing. It never could, it never will. Every governmental action has an opportunity cost: that which the private sector could do with the same resources. There’s no such thing as “federal money” or “government money”; there’s only “our money.”
- Government doesn’t add value. At best it protects what we value, by defending us at home and abroad.
- The economy isn’t a zero-sum game. Bill Gates is immensely wealthy because he has created things that are of value to others. When Indian computer geeks man call centers for lower salaries than those of American computer geeks, it makes both Indians and Americans better off.
- There’s no such thing as “market failure.” Rather, there is only failure of the market to provide what some people think it should provide. Even defense and justice (both classic examples of a “public good“) could be provided by the market, as anarcho-capitalists aver, but minarchists (as I am) fear the consequences (warlord rivalry) and reluctantly trust in the state for those essential underpinnings of a free society.
Most people simply don’t understand the consequences of the rules that they so fervently seek to impose on others. They have little idea of the measurable costs of intervention (the share of GDP that goes into government programs, for instance), and they have no idea of the hidden costs of that intervention (the vast amounts of income and wealth forgone as a result of intervention (see the addendum to Part V). They simply cannot comprehend the indivisibility of economic and social (or personal) liberty: Restrict one and you have restricted the other, as I discussed in Part IV and its addendum.
I could go on about “whiners” and “losers” and “envy” and the like, but those unadmirable human traits simply reflect a worldview of mistrust, compounded by a misapprehension of economic reality. When you don’t trust others and you fail to understand how the world works, you are driven to seek control over others, either personally or through the state.
The State Exploits Human Nature and Human Nature Exploits the State
I admit that politicians — those persons who engage in governance (judges included) — are people. Most governors, like those they govern, suffer from a dysfunctional worldview, economic illiteracy, and all the rest. Thus they are able to empathize with and draw power from the masses. Once having drawn it, they always seek to aggrandize it. Governors succeed in their quest for power because those who ultimately grant them power — the people — never seem to learn from the mistakes of government. As I wrote in Part V:
[R]eliance on government is an addictive drug — and a very expensive one. We swallow each dose in the hope that it will make us secure, and when that dose doesn’t make us secure we swallow another dose, in the hope that that dose will make us secure. And on and on. In the end, we are left with nothing but a costly addiction to government that impairs our liberty therefore ruins our economic health.
As Ludwig von Mises wrote in 1929:
With a few exceptions contemporary commentators on economic problems are advocating economic intervention .Then everyoneusually even the authorities responsible for themcall them insufficient and unsatisfactory. Generally the demand then arises for the replacement of unsatisfactory interventions by other, more suitable measures. And once the new demands have been met, the same scenario begins all over again .
This attitude toward specific interventions is readily understood by anyone who recognizes that intervention necessarily is illogical and unsuitable, as it can never attain what its champions and authors hope to attain. It is remarkable, however, that it is obstinately defended in spite of its shortcomings, and in spite of the failure of all attempts at demonstrating its theoretical logic.
What happens, then, is a ratcheting of government power, in response to demands for government to “do something,” and in furtherance of the ambitions of power-seeking politicians. There is no in-between solution. There is either a government of strictly limited powers — such as the one envisioned by the Framers — or there is, inevitably, socialism or something very close to it. As Mises explained in a speech he made in 1950, “Middle-of-the-Road Policy Leads to Socialism“:
The course of events in the past thirty years shows a continuous, although sometimes interrupted progress toward the establishment in this country of socialism of the British and German pattern. The United States embarked later than these two other countries upon this decline and is today still farther away from its end. But if the trend of this policy will not change, the final result will only in accidental and negligible points differ from what happened in the England of Attlee and in the Germany of Hitler. The middle-of-the-road policy is not an economic system that can last. It is a method for the realization of socialism by installments.
How does it work?
There are two methods available for the transformation of capitalism into socialism [and thus liberty into serfdom: ED]. One is to expropriate all farms, plants, and shops and to operate them by a bureaucratic apparatus as departments of the government. The whole of society, says Lenin, becomes “one office and one factory, with equal work and equal pay,”1 the whole economy will be organized “like the postal system.”2 The second method is the method of the Hindenburg plan, the originally German pattern of the welfare state and of planning. It forces every firm and every individual to comply strictly with the orders issued by the government’s central board of production management. Such was the intention of the National Industrial Recovery Act of 1933 which the resistance of business frustrated and the Supreme Court declared unconstitutional. Such is the idea implied in the endeavors to substitute planning for private enterprise.
In the second method, the substitution doesn’t take place all at once, but rather bit by bit, through the piecemeal enactment of statutes and regulations.
Democracy Enables the Regulatory-Welfare State
We have been following the piecemeal route to serfdom — adding link to link and chain to chain — in spite of the Framers’ best intentions and careful drafting. Why? Because the governed — or dominant coalitions of them — have donned willingly the chains that they have implored their governors to forge. Their bondage is voluntary, though certainly not informed. But their bondage is everyone’s bondage.
[Hayek] asks why it is that personal liberty is in continual jeopardy and why the trend is toward its being increasingly restricted. The cause of liberty, he finds, rests on our awareness that our knowledge is inevitably limited. The purpose of liberty is to afford us an opportunity to obtain something unforeseeable; since it cannot be known what individuals will make of their freedom, it is all the more important to grant freedom to everybody….Liberty can endure only if it is defended not just when it is recognized to be useful in particular instances but rather continuously as a fundamental principle which may not be breached for the sake of any definite advantages obtainable at the cost of its suspension….It is not easy to convince the masses that they should sacrifice foreseeable benefits for unforeseeable ones. (“Hayek’s Contribution to Economics,” in Essays on Hayek , p. 41.)
As Michael Munger says, in “Democracy is a Means, Not an End,”
blanket endorsements of majority rule make me wonder whether democracy is a fraud or just a conceit. As William Riker pointed out in his 1982 book, Liberalism Against Populism, the claim that “fair” processes always, or even often, lead to “good” outcomes ignores much of what is known about institutions and institutional change. If people disagree, and if there are several choices, democracy is manipulable, even dictatorial….
The pretense that in the multitude we find rectitude is dangerous: many of us would love to impose our “wisdom” on others….
[W]e don’t just demand too little of our democratic procedures, we are expecting too much of our democratic process. The educational system in the U.S. has failed students, because we don’t know the limits of unlimited democratic choice. We teach that consensus as a value in itself, even though we know that true consensus appears only in dictatorships or narrowly defined decisions. As James Buchanan, Kenneth Arrow, and a host of public choice scholars have shown, groups cannot be thought to have preferences in the same way that individuals do. To put it another way, it is perfectly possible, and legitimate, for reasonable people to disagree. The role of democracy is not to banish disagreement, but rather to prevent political disagreements from devolving into armed conflict….
The real key to freedom is to secure people from tyranny by the majority, or freedom from democracy. The problem, then, is what Fareed Zakaria has called “illiberal democracy.” The metaphor we use to understand ourselves matters, because it figures in how we try to advise others.
For much of modern history, what characterized governments in Europe and North America, and differentiated them from those around the world, was not democracy but constitutional liberalism. The “Western model of government” is best symbolized not by the mass plebiscite but the impartial judge. (Fareed Zakaria, The Future of Freedom, p. 20.)
The framers of the U.S. Constitution fully recognized that there is nothing, nothing at all, inherent in democracy that ensures the freedom of persons or property.
But because we have undone the work of the Framers, as I shall come to, we have descended to tyranny by the majority, where the majority is a loose but potent coalition of interest- and belief-groups bent on imposing its aims on everyone.
Unchecked democracy undermines liberty and its blessings. Unchecked democracy imposes on everyone the mistakes and mistaken beliefs of the controlling faction. It defeats learning. It undoes the social fabric that underlies civility. It defeats the sublime rationality of free markets, which enable independent individuals to benefit each other through the pursuit of self-interest. As “anonymous” says, with brutal accuracy, “Democracy is two wolves and a lamb voting on lunch.”
The Broken Promise
Where We Began
The Framers understood human nature as a natural enemy of liberty. That is why they strove to check the passions of the mob and the power of government. As Madison wrote in The Federalist Papers: No. 51:
In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own….
Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself….
In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit….
There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.
There are but two methods of providing against this evil….The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.
But a not-so-funny thing happened on the way to the state of liberty foreseen by Madison and the other Framers: Human nature has overcome constitutional obstacles. The governed and their governors — locked in a symbiotic relationship that is built on a mistrustful worldview, economic illiteracy, and baser instincts — have conspired to undermine the Constitution’s checks and balances. People, given their mistrustful and ignorant nature, have turned to government for “solutions” to their “problems.” Government, in its turn, has seized whatever power is necessary to go through the motions of providing “solutions.” For rare is the legislator who doesn’t want to legislate, the executive who doesn’t want to act, and the judge who doesn’t want to exercise his judgment by interpreting the law rather than simply apply it.*
Where We Have Ended — In Summary
The upshot is what I have called “The Erosion of the Constitutional Contract.” It would be more accurate to say “the torture of the constitutional contract,” which is now a twisted version of the Constitution that was crafted to perfect the promise of liberty given in the Declaration of Independence.
Judge Douglas Ginsburg calls it the “Constitution-in-exile,” referring to those parts of the Constitution that have been either ignored or twisted out of all recognition. He includes in that phrase the neglected doctrine of nondelegation, which bars the assignment of legislative power to executive agencies,
along with the doctrines of enumerated powers, unconstitutional conditions, and substantive due process, and their textual cousins, the Necessary and Proper, Contracts, Takings, and Commerce Clauses. The memory of these ancient exiles, banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hope of a restoration, a second coming of the Constitution of liberty — even if perhaps not in their own lifetimes.
Professor Randy Barnett, in his recent book, Restoring the Lost Constitution: The Presumption of Liberty, has more to say. Here’s a summary of some key points, courtesy of Wikipedia:
Over the years, the Constitution’s original meaning has been slowly eviscerated.
The necessary and proper clause has been read to allow Congress to do whatever they find convenient for exercising their enumerated powers, starting with the creation of a federal bank in McCullough vs. Maryland (1819).
The privileges and immunities clause has been interpreted as meaningless redundancy, starting with allowing Louisiana to create a slaughterhouse monopoly in The Slaughterhouse Cases (1873).
Violating the Ninth Amendment has become Supreme Court policy, starting with the famous footnote four of United States v. Carolene Products Co. (1938), which held that only rights listed in the first ten amendments could be protected by the courts. (Carolene Products itself ruled that Congress could prohibit entire forms of milk.)
The Tenth Amendment has been made meaningless, now that Congress has the power to do almost anything.
The Commerce Clause has been interpreted as allowing Congress to regulate practically anything, starting with meatpackers in Swift v. United States (1905) and going all the way to country clubs in Heart of Atlanta Motel v. United States (1964). (The unchecked expansion finally ended when the Court drew the line at carrying a gun in United States v. Lopez (1995), but even this was heavily contentious.)
The police power of the states has been ruled as having no limit.
The Second Amendment has simply been ignored.
Where We Have Ended — In Detail
Several years ago, my own reading (before Barnett’s book was published) led me to similar conclusions, which I had published as “The Erosion of the Constitutional Contract” in a pre-blog version of Liberty Corner. I began with the nature of the Constitution itself. It is — or was meant to be — a contract between the States, acting on behalf of their citizens. In that contract, the States cede certain powers to a government of the “united States,” which is a creature of the States. Thus, for example, in Section 10 of Article I, the States voluntarily deny themselves certain powers that in Section 9 they vest in Congress — creation of money, regulation of trade among the States and between the States and other nations, conduct of foreign relations, and conduct of war.
The Preamble lists the States’ reasons for entering into the constitutional contract, which are “…to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity….” These are ends desired, not outcomes promised.
To further these ends, the Constitution establishes a government of the united States, and authorizes it to enact, execute, and adjudicate laws within a delimited sphere of authority. The Constitution not only delimits the federal government’s authority but also diffuses it by dividing it among the federal government’s legislative, executive, and judicial branches.
The Framers knew what we are now only re-learning: A government is a power-hungry beast — even a representative government. More power in the hands of government means less power for individuals. Individuals are better off when they control their own lives than when government, directly or indirectly, controls their lives for them.
Thus the limited scope of the constitutional contract provides for:
- primacy of the federal Constitution and of constitutional laws over those of the States (This primacy applies only within the limited sphere of authority that the Constitution grants to the federal government. The federal government is not, and was not intended to be, a national government that supersedes the States.)
- collective obligations of the States, as the united States, and individual obligations of the States to each other
- structure of the federal government — the three branches, elections and appointments to their offices, and basic legislative procedures
- powers of the three branches
- division of powers between the States and federal government
- rights and privileges of citizens
- a process for amending the Constitution.
The principles embodied in the details of the contract are few and simple:
- The Constitution and constitutional laws are the supreme law of the land, within the clearly delimited scope of the Constitution.
- The federal government has no powers other than those provided for by the Constitution.
- The rights of citizens include not only those rights specified in the Constitution but also any unspecified rights that do not conflict with powers expressly granted the federal government or reserved by the States in the creation of the federal government.
The Constitution may be the “supreme law of the land” (Article VI), but as the ardent federalist Alexander Hamilton explained, the Constitution “expressly confines this supremacy to laws made pursuant to the Constitution.” (From The Federalist Papers: No. 33.)
Thus the authority of the federal government — the government formed by the united States — enables the States to pursue common objectives. But that authority is limited so that it does not usurp the authority of States or the rights of citizens.
Moreover, the “checks and balances” in the Constitution limit the federal government’s ability to act, even within its sphere of authority. In the legislative branch neither the House of Representatives nor the Senate can pass a law unilaterally. In his sole constitutional role — as head of the executive branch — the President of the United States must, with specified exceptions, sign acts of Congress before they become law, and may veto acts of Congress — which may, in turn, override his vetoes. From its position atop the judicial branch, the Supreme Court is supposed to decide cases “arising under” (within the scope of) the Constitution, not to change the Constitution without benefit of convention or amendment.
The Constitution itself defines the sphere of authority of the federal government and balances that authority against the authority of the States and the rights of citizens. Although the Constitution specifies certain powers of the federal executive and judiciary (e.g., commanding the armed forces and judging cases arising under the Constitution), federal power rests squarely and solely upon the legislative authority of Congress, as defined in Article I, Sections 8, 9, and 10. The intentionally limited scope of federal authority is underscored by Amendments IX and X.
The myriad statutes and regulations through which the federal government has seized the powers and rights of States and citizens are, to put it plainly, unconstitutional. Such statutes and regulations rest on constitutionally weak foundations; for example:
- the phrase “promote the general welfare” in the Preamble. This was a desired result of the adoption of the Constitution, not an edict to redistribute income and wealth.
- the power of Congress “to regulate commerce…among the several states [Article I, Section 8].” This power was meant to prevent the States from restricting or distorting the terms of trade across their borders, not to enable the federal government to dictate what is traded, how it is made, or how businesses operate.
- the authority of Congress “[t]o make all Laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof [Article I, Section 8].” The words “necessary and proper” have been wrenched out of their context and used to turn the meaning of this clause upside down. It was meant to limit Congress to the enactment of constitutional legislation, not to give it unlimited legislative authority.
- the “equal protection” clause of Amendment XIV: “…nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.” Amendment XIV was meant to secure the legal equality of those former slaves whose freedom had been secured by Amendment XIII. Amendment XIV became, instead, the basis for Supreme Court decisions and federal laws and regulations that have given special “rights” to specific, “protected” groups by curtailing the constitutional rights of the many who cannot claim affiliation with one or another of the “protected” groups.** As the proponents of such groups might ask, is it fair?
The authors of the Declaration of Independence, were they writing it today, would be able to list “a long train of abuses and usurpations” by the federal government against the States and the people. Their list would rightly include these charges, once levelled against the British monarch:
…erected a multitude of new offices, and sent hither swarms of officers to harrass our people and eat out their substance….
…combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws….
…[took] away our [State] charters…and alter[ed] fundamentally the forms of our governments….
As discussed in Part IV and its addendum, not only are economic and personal liberty indivisible, but liberty itself is indivisible. We have to accept the bad outcomes that flow from liberty alongside the good ones. Liberty is an all-or-nothing proposition, which makes it a daunting one. It seems easier to give up a bit of liberty for this or that perceived benefit. In a democracy is all too easy to demand — and receive — a benefit to match the benefits enjoyed by others. The problem is that the (illusory) benefits are all too visible, whereas the (immense) costs are diffuse and hidden.
In brief, liberty has been vanquished in the mistaken belief (or hope) that government can effectively and efficiently make us better off, salve our woes, and put an end to social and racial divisions. To those ends, the governed and their governors, walking hand in hand, have taken liberty for a stroll down a slippery slope. Every step they have taken down that slope has made more problematic our journey back up the slope.
* As Judge Douglas Ginsburg explains:
[Chief Justice John] Marshall’s reasoning [in Marbury v. Madison], however well-accepted, is not without its difficulties. He wrote:
Certainly, all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature,
repugnant to the constitution, is void.
This theory, which Marshall later described as essentially attached to a written constitution, avoids neatly the question who decides whether a law is indeed repugnant to the Constitution. That said, judicial review is with us still, and Marbury v. Madison is a foundation-stone of our legal system, built as it is upon a written constitution. And Chief Justice Marshalls observations about the reason for enacting a written constitution are of great relevance to our topic:
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. . . . The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.
A written constitution is not without its arguable disadvantages. Indeed, the virtues of such a documentits immutability, its constraint upon government actioncould become drawbacks when rapid action is necessary or desirable. Moreover, a written Constitution imposes upon judges the difficult task of interpreting and applying the text to circumstances that could not have been imagined by the Framers. What role for the First Amendment in regulating the airwaves? Is using thermal imaging technology to penetrate the walls of a home a search? That these questions are difficult, however, does not mean we should give them short shrift and capitulate to those who either do not conceive or care not to apprehend how the constraints of a written Constitution protect our liberty.
Regardless whether one prefers the constrained government bequeathed by the Framers or an activist, more freewheeling government like that of the contemporary United Kingdom, there can be no question about what our Constitution established. It is a written document. It carefully enumerates and circumscribes the powers and duties of each branch of the national government, of the national government in relation to the states, and of both with respect to individuals. And because that is what we have, and what federal judges swear to uphold and defend, we ought to be faithful to it and, as we are sworn to do, decide cases agreeably to the Constitution and laws of the United States, and thus preserve the advantages of having a written constitution.
To be faithful to our written Constitution, a jurist must recognize and respect the limiting nature of its terms. Granted, what a term such as due process requires in a particular circumstance is not always clear. Nevertheless, there should be no question at all about whether a 34-year-old or a naturalized citizen may become President of the United States. That the terms giving rise to most questions of constitutional meaning lie somewhere between inherent ambiguity and mathematical certainty is no excuse from the duty of fidelity to the text. Rather, to be faithful to the written Constitution a jurist must make it his goal to illuminate the meaning of the text as the Framers understood it. To be sure, there will be disagreements even among principled jurists whose only goal is fidelity to the text, but with the aid of historical sources such disagreements will be confined to the ordinarily narrow and determinate zone within which competing constructions of a word or phrase are reasonable.
Through most of the history of the Republic, judges were faithful in their subservience to the text of the Constitution….
Despite sporadic departures like Dred Scott, respect for the text of the Constitution was the norm from Marbury through the first third of the twentieth century. But the Great Depression and the determination of the Roosevelt Administration placed the Supreme Courts commitment to the Constitution as written under severe stress in the 1930s, and it was then that the wheels began to come off….
Not only structural constraints in the written Constitution have been disregarded; even precepts within the Bill of Rights have been blinked away. The Takings Clause of the Fifth Amendment, which provides that the Government may not take private property except for a public use, and then only if it pays just compensation, provides no protection against a regulation that deprives the nominal owner of most of the economic value of his property.
At the same time that the Court redacted the textual limits upon the authority of the Congress to regulate, it has interlineated the Constitution with new rights, which is to say new limits upon government, of its own devising. In so doing, the Court acts as a council of revision with a self-determined mandate. Its decisions are frankly legislative in character: invalidating acts of the national and state legislatures on grounds that are not to be found in the Constitution, and on its own initiative placing new obligations upon the federal and state governments. However one might approve of the Courts decisions as matters of policy, they have only the merest pretense of comporting with the Constitution as it was written….
The question remains whether this freewheeling style of constitutional decisionmaking, in which the document itself plays only a cameo role, is to be a permanent feature of constitutional law, or whether we can regain the virtues of a written constitution. If history is any guide, then reform is not likely to spring from any branch of the federal government.
** What about discrimination? Yes, there are many kinds of discrimination: racial, sexual, political, intellectual, class-based, appearance-based, and on and on. Discrimination of one kind or another is an inescapable part of life.
Where should government draw the line in its effort to remedy the effects of discrimination? Is it damaging to liberty if a prevailing social sentiment (e.g., racial bias) results in harm (e.g., a refusal on the part of whites to trade with blacks), even when the harm flows from voluntary behavior and not from force? Well, the harm flows both ways; the biased pay a price for their bias, as did white business-owners who refused the patronage of blacks. As I wrote here:
I conclude that the state has no business telling its citizens how they may or may not carry their racial attitudes into the conduct of their affairs, as long as that conduct is passive — that is, as long as it takes such forms as not buying from, hiring, or otherwise associating with members of certain groups. I say that not out of bigotry — I long ago outgrew the attitudes of my native State — but because we have gone far beyond the abolition of slavery and the granting of equal civil rights. We have practically repudiated freedom of association, we have severely undermined property rights, and — more lately with speech codes and hate-crime laws — we have entered an early stage of thought policing.
Is that “hard” or “uncompassionate”? I think not. Most of us are born with or acquire a “handicap” of some kind: shortness, weakness, poor eyesight, obesity, unattractive features, below-average intelligence, below-average family income (though that is no longer the same thing as poverty). The only thing government can do — other than to abolish slavery and grant equal civil rights — is to get out of the way. Governmental efforts to erase the effects of certain genetic and social “handicaps” through reverse discrimination have several untoward effects:
- The beneficiaries of reverse discrimination tend not to benefit fully, if at all, from their special treatment because they are resented and depreciated by others.
- The beneficiaries of reverse discrimination must eventually make it on their own, a task that is made more difficult because they have been sheltered from many of the kinds of learning and toughening experiences that are essential to social and economic advancement.