The Real Constitution and Civil Disobedience


I have no doubt that there is a “real” Constitution. Randy Barnett makes a good case for it:

Under our system, the Supreme Court has the last word on whether a statute challenged as unconstitutionality will be upheld or nullified. But it does not have the power to change the written Constitution, which always remains there to be revived when there is a political and judicial will to do so. For example, after the Supreme Court gutted the Fourteenth Amendment during Reconstruction, it remained a part of the written Constitution for a future more enlightened Supreme Court to put to good use. By the same token, the current Supreme Court can still make serious mistakes about the Constitution. Because it is in writing there is an external “there” there by which to assess its opinions.

It is equally indubitable that the United States has become a nation of unconstitutional laws — a vast number and variety of them. For proof, if proof you need, peruse the United States Code, the Code of Federal Regulations (which includes presidential Executive Orders), and the statutes and regulations of the States (accessible through State and Local Government on the Net).

Which brings me to civil disobedience:

the active refusal to obey certain laws, demands and commands of a government, or of an occupying power, without resorting to physical violence.

It is entirely reasonable to think of America’s present governments — federal, State, and local — as occupying powers. We might just as well have been invaded by a foreign power that chose to abide by our electoral rules, then substituted its own laws for what, until then, had been America’s more-or-less constitutional ones.


As a result of the de facto seizure of America’s governments by forces aligned against the Constitution, Americans and the American economy are weighed down with tens of thousands of intrusive, arbitrary, and wasteful laws and regulations. Every aspect of our lives is touched, directly or indirectly, by those laws and regulations.

Some laws and regulations are legitimate, in that they are consistent with liberty:

Whether a particular regulation is consistent with liberty depends on the justification offered on its behalf. Regulations are not inimical to liberty if they coordinate individual conduct as do, for example, traffic regulations mandating driving on one side of the street or the other. They may also be consistent with liberty if they prevent irreparable tortious accidents before they occur, as speed limits do. . . . Although many libertarians object to government ownership of highways, no libertarian objects in principle to a highway owner regulating its use to enhance the speed and safety of driving. Similarly, contract law is a body of rules regulating the making and enforcing of agreements, and libertarians are not opposed to contract law. . . .

A law restricting conduct is consistent with a right to liberty, therefore, if it is prohibiting wrongful acts that violate the rights of others or regulating rightful acts in such a way as to coordinate conduct or prevent the violation of rights that might accidentally occur. A law is inconsistent with liberty if it is either prohibiting rightful acts, or regulating unnecessarily or improperly. A regulation is improper when it imposes an undue burden on rightful conduct, or when its justification is merely a pretext for restricting a liberty of which others disapprove. And one way of identifying a regulation as pretextual is to assess whether the regulatory means it employs do not effectively fit its purported health and safety ends.

Here is how the majority in Lochner distinguished a constitutional exercise of the police power from an unconstitutional restraint on liberty:

In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?

We may conclude from all this that . . . the fact that regulations of liberty have been upheld as constitutional is no evidence that the general constitutional right to liberty does not exist. It may merely be a sign that the government has met its properly-defined burden of proof. (Randy Barnett, “Is the Constitution Libertarian?,” pages 8-9)

The difficulty is that

the Supreme Court has upheld countless federal laws restricting liberty, primarily under the power of Congress “to regulate commerce . . . among the several states” combined with an open-ended reading of the Necessary and Proper Clause. Further it has upheld the power of Congress to spend tax revenue for purposes other than “for carrying into execution” its enumerated powers, thereby exceeding the scope of the Necessary and Proper Clause. . . .

Beginning in the 1930s, the Supreme Court . . . adopted a presumption of constitutionality whenever a statute restricted unenumerated liberty rights. In the 1950s it made this presumption effectively irrebuttable. Now it will only protect those liberties that are listed, or a very few unenumerated rights such as the right of privacy. (op. cit., pp. 15, 17-18)

I consider few governmental restrictions on action as legitimate, that is, “properly regulating rightful acts,” as Barnett puts it. It is legitimate to set and enforce a low speed limit in a school zone, to exact stiff penalties for drunken driving, and to ban the use of a cell phone while driving. But it is questionably legitimate to ticket a capable, sober driver for exceeding the speed limit by 10 miles an hour on a flat stretch of well-maintained, dry interstate highway, in light traffic. And it is grossly illegitimate to enter a judicial decision that forbids a wheat farmer to exceed a federal allotment by growing additional wheat for consumption on his own farm. Indeed, the law that allows the federal government to establish such allotments in the first place is supremely illegitimate — as are all laws that do harm rather than good because they penalize and interfere with acts that are either harmless or actually beneficial.


Americans have been lulled by what Tocqueville calls “soft despotism.” As I have said,

Soft despotism is “soft” only in that citizens aren’t dragged from their houses at night and executed for imaginary crimes against the state — though they are hauled into court for not wearing seatbelts, for smoking in bars, and for various other niggling offenses to the sensibilities of nanny-staters.

Despite the absence of arbitrary physical punishment, soft despotism is despotism, period. It can be nothing but despotism when the state holds sway over your paycheck, your retirement plan, your medical care, your choice of associates, and thousands of other details of your life — from the drugs you may not buy to the kind of car you can’t drive, from where you can build a house to the features that your house must include.

How did we get to this point? We got here via the interest-group paradox:

You may believe that a particular program is worth what it costs — given that you probably have little idea of its direct costs and no idea of its indirect costs. The problem is millions of your fellow Americans believe the same thing about each of their favorite programs. Because there are thousands of government programs (federal, State, and local), each intended to help a particular class of citizens at the expense of others, the net result is that almost no one in this fair land enjoys a “free lunch.” . . .

The paradox that arises from the “free lunch” syndrome is much like [two other] paradoxes. . . . It is like the paradox of thrift, in that large numbers of individuals are trying to do something that makes certain classes of persons better off, but which in the final analysis makes those classes of persons worse off. It is like the paradox of panic, in that there is a  crowd of interest groups rushing toward a goal — a “pot of gold” — and (figuratively) crushing each other in the attempt to snatch the pot of gold before another group is able to grasp it. The gold that any group happens to snatch is a kind of fool’s gold: It passes from one fool to another in a game of beggar-thy-neighbor, and as it passes much of it falls into the maw of bureaucracy.

I call this third, insidious, paradox the interest-group paradox. It is the costliest of the three — by a long shot. It has dominated American politics since the advent of “progressivism” in the late 1800s. Today, most Americans are either “progressives” (whatever they may call themselves) or victims of “progressivism.” All too often they are both.

Today, with a century-plus of “progressivism” behind us, more than 40 percent of GDP is controlled directly by government, through taxes and regulations. Those same taxes and regulations, because of their disincentivizing effects, have imposed vastly higher hidden costs on Americans.

And there is more to come, as the demi-gods in Washington seek to repeal the laws of economics by promising more medical care to more persons while discouraging entry into the healing professions and the development of beneficial drugs. On top of that they seek to repeal the laws of physics by further constraining the economy in a fruitless struggle against global warming, which is not a man-made phenomenon.

If you think your liberty (such as it is) has survived (or will survive) those and other economic depredations, think again, for social liberty is indivisible from economic liberty:

There can be no freedom of the press if the instruments of printing are under the control of government, no freedom of assembly if the needed rooms are so controlled, no freedom of movement if the means of transport are a government monopoly, etc. This is the reason why governmental direction of all economic activity, often undertaken in the vain hope of providing more ample means for all purposes, has invariably brought severe restrictions of the ends which the individuals can pursue. (Friedrich A. Hayek, Liberalism, part 16)

A small sample of control, in today’s America, is found in a recent action by the Department of Health and Human Services. HHS prevented government-regulated insurance companies from advising policy holders of the ill effects that Obamacare would have on their insurance coverage. So much for freedom of speech.

More generally, I offer the following thoughts by Walter Lippmann (via Don Boudreaux):

I recalled this wise warning from Walter Lippmann (found on pages 105-106 of Lippmann’s 1937 book The Good Society):

“Though it is disguised by the illusion that a bureaucracy accountable to a majority of voters, and susceptible to the pressure of organized minorities, is not exercising compulsion, it is evident that the more varied and comprehensive the regulation becomes, the more the state becomes a despotic power as against the individual.  For the fragment of control over the government which he exercises through his vote is in no effective sense proportionate to the authority exercised over him by the government.”


The seizure of America’s governments by the lawless occupying powers of “progressivism” not only has cost Americans dearly but also has made us hostages in our own land:

Voice is now so circumscribed by “settled law” that there is a null possibility of restoring Lochner and its ilk. Exit is now mainly an option for the extremely wealthy among us. (More power to them.) For the rest of us, there is no realistic escape from illegitimate government-made law, given that the rest of the world (with a few distant exceptions) is similarly corrupt.

Under the circumstances, it would be natural — and legitimate — for Americans to resort to massive civil disobedience.

And Americans often do resort to civil disobedience, but mainly in relatively trivial ways (e.g., exceeding speed limits on open highways, under safe conditions). The general reluctance of Americans to commit acts of civil disobedience is unsurprising, given the apparent entanglement of government in our lives and businesses. Unless one chooses a truly self-sufficient life, it is practically impossible to avoid governmental notice of and influence on major events and transactions, for example, births, weddings, employment, the acquisition of life’s essentials (food, clothing, shelter, medical care), and the enjoyment of stimulants, entertainment, and so on.

Accordingly, it is natural for individuals to believe that the heavy hand of government is inescapable. Thus most of us do not try to elude government’s heavy hand, except in relatively trivial ways. And we believe that those who do try to elude it — bootleggers and black marketeers, for example — are often found out and punished. But that impression is due to a kind of reverse survivor bias; that is, we know about the bootleggers and black marketeers who are caught, but we don’t know about the ones who elude official notice.

Imagine an America in which most individuals and businesses routinely commit acts of civil disobedience. Could the various governments in and of the United States possibly detect and punish more than a small fraction of those acts of civil disobedience? The answer, of course, is “no.”

What keeps most individuals and businesses from committing more than trivial acts of civil disobedience is the fear that their particular transgressions will be among the small fraction that is detected and punished. This kind of fear has an especially strong deterrent effect under oppressive regimes that rely on informants and harsh punishments to discourage acts of civil disobedience. The contrast between America and, say, Hitler’s Germany and Stalin’s Russia ought to give heart to Americans. Informants and punishments there are, and always will be, but in American neither of them is on a scale to match the insidious and barbaric regimes of Hitler, Stalin, and their ilk. Not yet, at least.

And in the preceding sentence there is both hope and urgency. Our daily lives are not yet completely dominated by the state. We still have options in many aspects of our lives — even if those options, themselves, are shaped by laws and regulations. Houses and automobiles, for example, must meet thousands of government specifications, but they still are available with a broad array of features, for a broad range of prices.

But how much longer will our illusory freedom last against the onslaught of statism? That is the urgent question, given the prospects at hand for effective government control of the economy through environmental legislation, a complete government takeover of medicine, the punishment of “thought crimes,” the general expansion of paternalistic policies, and on and on.

I leave the enumeration of legitimate acts of civil disobedience as an exercise for the reader. But the time to consider civil disobedience is now, while there is a spark of liberty in the land.

See “The Constitution: Myths and Realities“.