More from Libertarianism: What Everyone Needs to Know

Certain libertarians of a more conservative bent tend to treat the US Constitution as a sacred document. Some think tanks routinely pump out documents saying that America is going down the drain because leaders no longer respect the Constitution.

In A Brief History of Liberty, David Schmidtz and I say:

 In western democracies, when we exalt democracies, what we exalt is constitutional democracy. The constitutional part is more important than the democracy part. To be worth defending, democracy has to be limited. There are things our neighbors must not be allowed to do, even if they can muster a large voting majority. As classicist and philosopher Paul Woodruff says, “the tyranny of the majority kills freedom as dead as any other form of tyranny. It’s not freedom if you have to join the majority in order to feel that you are free.”

But neither of us is particularly excited by written constitutions. Written constitutions are not self-enforcing. Quoting from Libertarianism:

Written constitutions contain legal guarantees, but legal guarantees guarantee nothing. To maintain a constitutional regime, citizens must be strongly committed to maintaining a constitutional regime. Some forms of government make it easier to undermine or bypass commitment. But written constitutions are not self-enforcing.

The worst dictatorships and totalitarian regimes have often had liberal written constitutions, constitutions indistinguishable from those in liberal Western democracies. For instance, the Soviet Union under Stalin was a humanitarian disaster—most scholars estimate Stalin’s government killed more than 20 million people (outside of war)—even though the USSR’s constitution guaranteed human rights.

It’s not clear that the US Constitution was  really supposed to protect liberty. One reading of history–the reading I favor–says that the point was just to empower a central government.

The actual—indeed, intended—effect of replacing the Articles of Confederation with the Constitution was not to protect liberty or promote social justice, but to strengthen the central government.

The following passage grew out of a conversation with my father-in-law. He asked, didn’t Shay’s Rebellion prove we needed a stronger federal government. Now, perhaps we did. Perhaps in the final analysis the government under the Articles of Confederation was not strong enough. But it’s bizarre to use Shay’s Rebellion as evidence.

Shay’s Rebellion in 1786 prompted many leaders to replace the Articles of Confederation and to favor a stronger central government. Daniel Shay was an honored and decorated soldier during the American Revolutionary War. Like many revolutionary soldiers, Shay was never paid for his service. He returned from service with large farm debts—debts he could not pay because he was not paid for his military service. European creditors wanted payment in gold and silver, but these were in short supply. Shay and other badly treated veterans worried their property would be confiscated and they would be placed in debtors’ prisons. They petitioned the Massachusetts government to fix the problem. Boston ignored their petitions. Finally, in desperation, Shay and other farmers rebelled. They formed a militia to prevent local courts from confiscating their property. Under the Articles of Confederation, it was difficult for the US central government to help Massachusetts crush the rebellion.

American public school history books tell the story of Shay’s Rebellion in order to show that the US Constitution was necessary. Some libertarians take an alternative reading: The government treated Shay and his fellow farmers in an extremely unjust way. If Shay’s Rebellion is supposed to justify the US Constitution, what is the justification, that the Constitution makes it easier for the government to oppress the poor?

At any rate, people see the Constitution as a set of guarantees. But legal guarantees guarantee nothing.

There is a difference between guaranteeing in the sense of rendering something inevitable (as when an economist says that quadrupling the minimum wage would guarantee widespread unemployment) versus guaranteeing as expressing a firm commitment to achieve a goal (as when the Bush administration guaranteed no child would be left behind).

Libertarians say that guaranteeing something in the latter sense is no real guarantee.

I’ll return to this point more when I discuss libertarianism and the welfare state.

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  • Cory H

    I was just thinking about the constitution about 15 minutes ago. Interesting that I found this article on Facebook!

    Anyway, I do believe that the Constitution is a terrible legal document. The Rule of Law needs to be strictly enforced to be effective. The legal understanding of a document should be absolute.

    It would be good for the Federal Government to enforce the 9th Amendment in the classical liberal tradition that echoes the Founders. It does not. The Federal Gov’t has used the Interstate Commerce clause to control the economy in a way that damages liberty and economic welfare.

    If we are to have a constitution, an encompassing legal document that enhances liberty and freedom, the Constitution needs to be fundamentally changed. Power needs to be decentralized, power needs to be limited, and the government needs many checks and balances.

    The Constitution, while seemingly having all of the things above, doesn’t when applied to our society. Because of this, libertarians ought to reject the Constitution as a failed institution.

    • SimpleMachine88

      I don’t. I believe what the Constitution says I should believe, and therefore I’m a libertarian.

    • shemsky

      Cory, the legal understanding of a document can never be absolute. See “The Myth of the Rule of Law” by John Hasnas.

  • Cristian Reyes

    If the constitution is a flawed document, then what should libertarians advocate? Are you suggesting that it be replaced, or that it be heavily modified from its current form to uphold the ideals of a more limited government? If the former, what should replace it? If the latter, then how could it be changed in such a way as to better enforce individual liberties?

    • Bob_Robert

      First, the state is the institution with the monopoly on “legitimate” coercion. What do you believe is the legitimate, that is, the correct, valid, or moral quantity of violence to be used against those who have done no harm?

      The principled Libertarian will conclude that statelessness is the only just and moral conclusion, because entirely voluntary interaction is the logical result of the Non-Aggression Axiom. Coercion is wrong, so there can be no institution of “legitimate” coercion.

      However, that’s just not going to happen tomorrow for anyone but the Agorists.

      So have you read the Articles of Confederation?

  • Peter St. Onge

    If “legal guarantees guarantee nothing” then we have nothing left but force. In which case we should be talking about the military and it’s relationship to the Constitution. In many countries, of course, the military is the ultimate arbiter. So the interesting question might be why the US military has such devotion to the Constitution’s “legal guarantees.”

    • liberty

      No, you are missing the distinction – read again carefully. It’s a declaration that is no guarantee, such as declaring everyone shall be rich does not make everyone rich.

      • Peter St. Onge

        Thank you, I did miss the distinction. I thought we were talking means/ends. I’d never heard a serious claim that Constitutional guarantees are mere statements of intent.

        • liberty

          Brennan is making the distinction between declarations of rights such as “the right to healthcare” or promises such as a living wage, which can be declared in a constitution, but which cannot be ensured because there is no magic wand that can bring it about if other conditions do not allow it, and rights that can be enforced, such as the right to property and free exchange–institutions which might bring about the real-world result.

          This is an important distinction regarding the kinds of “rights” promised in a constitution. This is why I was upset about Brennan’s representation of the Soviet constitution. I wrote about this a while ago on my blog – http://plan.economicliberty.net/2011/03/on-rights-and-liberties-protected-by.html
          When considering a constitution one must ask not only whether it includes articles protecting rights such as freedom of speech and action, one must also ask whether it provides a system of rule of law that allows individual freedom and hence a framework for freedom of speech and action.

          If the system is not one of individual freedom of action or some non-private rule of law that allows free cooperation, it cannot ensure freedom of speech and action at least without prioritizing that above the other articles in the constitution which may undermine them.

          Imagine a constitution in which article A.1. is “public ownership of media” and article 2.B. is “freedom of speech”, which is stated as always with some modicum of limitation, deemed necessary in most-all societies to date–let’s say “except in cases where the safety of the public may be endangered by the speech…”

          If “public ownership of media” trumps “freedom of speech” in this constitution, and the “public owners” of media also have passed legislation which states that they may censure speech if it goes against their public charter, because Article A.1. trumps article 2.B., freedom of speech is quashed, even if Article A.1 is identical to its equivalent in a private ownership society. Public ownership of media may enhance the use of the same limitation simply because the state has more control over media. The promise of free speech succumbs to the system’s inertia.

          When a constitution protects rights such as free speech and action it must also ensure that the freedom of speech and action is possible within those rules of law, whether they be rules of a command economy or other (more democratic – majority rule?) public ownership society, or the rule of private property.

          How does the constitution ensure that the same small limitation on free speech is not abused by the government? The articles cannot be separated – one cannot say “oh, the constitution has Article 1.A. protecting freedom of speech just like ours does, therefore its a “liberal Western” type of constitution just like ours.The rest of the constitution matters.

        • liberty

          From my blog post:
          despite all the calls for these ‘positive rights’, they have not proven to be helpful for the poorest in the given country either. Asserting a right to something also does not make it exist where it does not exist. If the only medicine that a country can afford is aspirin, it won’t matter whether the constitution asserts a right to first-class medical care. And in fact the more that constitutions assert rights to this and that necessity, the less that natural rights to freedom, life, and property seem to be respected.

          There is a good reason for this. If the state promises a right to medical care, then it might just try to come through on this promise – but this may be very expensive if the state would just give everyone a voucher that could cover existing costs. Hence, the state may then try to ‘control costs’ by setting the prices on medical products and on wages (which is allowed by a constitution which promises such positive liberties – after all, the government needs the power to achieve its promises). So, the state sets prices and wages, and tells the companies how they must provide care, and does the same for housing and for the other industries enumerated. And the more that is promised the more that is regulated and decided by the state – often spiralling out of control (to the extent that it is difficult for the state to afford everything–i.e., to the extent that the state faces an issue of scarcity).

  • RickDiMare

    The only thing wrong with the Constitution is how it’s taught in law schools. For lawyers who are looking for libertarian substantive property law principles like self-ownership, there’s plenty in the Constitution to support that property right, particularly when Supreme Court cases surrounding income tax and monetary law evolution are explored.

  • SimpleMachine88

    The difference between our Constitution and that of the Soviet Union can be explained by Burke. We have damn near the oldest continual government in the world, and after a couple of centuries, it’s not just about the people creating the Constitution, but the Constitution creating the people. We grow up accepting that all people are endowed with inalienable rights, from freedom of religion to habeas corpus, and we’re too used to them by now not to put up a fight when they’re infringed.

  • martinbrock

    I try not to think about the U.S. Constitution anymore.

  • liberty

    I’ve very much enjoyed the quotes from this book, until this one. This one disappoints me quite a lot:
    “The worst dictatorships and totalitarian regimes have often had liberal written constitutions, constitutions indistinguishable from those in liberal Western democracies. For instance, the Soviet Union under Stalin was a humanitarian disaster—most scholars estimate Stalin’s government killed more than 20 million people (outside of war)—even though the USSR’s constitution guaranteed human rights.”
    As you mention later, a guarantee of something in the sense of declaring it to be so is no guarantee. The Soviet constitution did much more than declare certain human rights, it also declared certain legal institutions, which were in fact enforced, including public (i.e, government) ownership over property. It was the conflict between these legal, enforced, institutions with the supposed freedoms and rights that led to the loss of the latter. In other words: it was NOT a “liberal Western” type of constitution. On the contrary, although some called it “the most liberal ever” it would be seen today, if introduced in any “liberal Western” country, as a recipe for tyranny — which in fact it was. I think it’s de Soto, among others perhaps, who has studied constitutions of various countries to see how much positive rights, such as the right to a job, health care etc., in the constitution (the Soviet constitution included a huge number of these) tend to correlate with a reduction in freedoms and wealth.

  • Bob_Robert

    The Constitution was a bloodless counter-revolution to install British Merchantilism in the States, as it was in the Colonies, but this time with Hamilton and his buddies as the ones on top, rather than on the bottom.

    There was no failure of the Articles of Confederation. They were abandoned because of propaganda by the vested interests. The one State that had a referendum was Rhode Island, and the people were against ratification of the Constitution 6 to 1.

    • Peter St. Onge

      I didn’t know about RI. Very interesting.

  • Adrian Ratnapala

    I don’t know J.B’s opinion, but his concrete points *favour* revering constitutions.

    Words on paper can’t guarantee rights, but people who rally around words can. Written constitutions can be used as a brake against uncontrolled, creeping undermining of institutions. But that requires active diligence, you have to take the text seriously and not be too quick to change (or ignore) it’s meaning.

    Also U.S. history: Yes the U.S. and it’s constitution is a centralising, state-strengthening institution. But it is also a political compromise and bakes into its text (especially via the early amendments) the concessions that the Federalists had to make.

  • Pingback: What Libertarians Think About the U.S.Constitution Part I: Some Reflections | Online Library of Law and Liberty()

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  • bruceleejr

    Think about it guys. Why are we even having this debate ? Because the Constitution is so complicated with all it’s ambiguous language. It was PURPOSELY designed that way with most influence of that damn Alexander Hamilton.

    Cmon guys, Thomas Jefferson, Patrick Henry, Samuel Adams from Sons of Liberty, Brutus and other anti-federalists …. have you guys seen the Anti-Federalist papers ???

    Did you know of the 55 delegates that attended the Constitutional Convention, 14 had left because the original goal was to REVISE the Articles of Confederation, not discard it completely ??

    The Philadelphia Convention was held for like 3 months in secret !!!!!! Behind closed doors ON THE 2nd FLOOR with sentries at the bottom guarding the place with covered windows. Doesn’t that say something ???

    Robert Yates (Brutus) and James Madison took extensive notes at the convention, you should check those out. Although Madison was a federalist at first, he retracted that position to anti-federalism later on in life.

    When Thomas Jefferson and Alexander Hamilton were arguing with eachother over centralized power,taxes and what not ….. George Washington favored Hamiltons argument instead of Jeffersons. This is why prominent libertarians will tell you that we are Jeffersons kids, we live in Hamiltons America.

    Why do you think the Federalist Papers were written ??? Hamilton needed to because of the anti-federalist mindset that was prevalent during that time.

    LOTS WERE AGAINST THE DAMNED CONSTITUTION !!!!!!!!!!!!!!!!

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