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.