On Constitutionalism and Liberty

A prominent trait of libertarians is a willingness to ask questions that the adherents of no other political philosophy will. Assumptions that conservatives and liberals take for granted are often challenged by libertarians, and there’s no area of politics that is off limits. This includes the Constitution.

Now, it’s true that conservatives and liberals hold different opinions of the Constitution, opinions which, to nobody’s surprise, almost always correspond to their policy preferences. Liberals view the Constitution as a “living, breathing document,” which is shorthand for a legal theory that treats the Constitution as a sort of elaborate mad lib game. Conservatives, on the other hand, like to interpret the Constitution more narrowly, as long as the “strict constructionist” method doesn’t interfere with their own preferred outcomes. Among neither group, however, is the Constitution’s authority fundamentally challenged.

That’s where libertarians come in. Libertarians, ever the skeptics of the state, dare to ask the questions that nobody else will. Libertarian iconoclasts challenge the Constitution’s authority and legacy, often relying on abolitionist-anarchist Lysander Spooner’s 1867 essay titled The Constitution of No Authority.

Spooner’s arguments against the Constitution – that it is both ineffective at limiting the government and not binding on anyone who has not explicitly assented to it – were incisive and radical in their implications. They have further proved to be enduring, as they are repeated today by libertarian critics of the Constitution. The Constitution, these critics say, is a statist document that undermines individual liberty. As such, it is owed no special place in libertarian hearts and philosophy.

But are the critics right? Well, yes and no.

Certainly Spooner’s arguments are well-grounded in libertarian thought. The social contract theory on which the Constitution is based – and the development of which was significantly aided by advocates of liberty – was later annihilated by the classical liberal and libertarian thinkers of the nineteenth and twentieth centuries, among them Spooner himself. It is further true that the Constitution has an abysmal record of limiting the growth of the state in American society.

But turning these arguments into a comprehensive indictment of the Constitution’s legacy ignores to a large extent the context in which it was written and the role that its development played in the pursuit of individual liberty. The Constitution was written during a time in which people around the world were attempting to escape the tyranny of monarchy and to establish freer societies based on the will and freedom of the people. In this environment the social contract theory, particularly that articulated by John Locke, was enormously influential inasmuch as it provided a rationale for both the rejection of claims to arbitrary power by tyrants and a basis for the creation of new civil governments that would respect the peoples’ rights.

It shouldn’t be surprising, then, that Constitution relied on the social contract theory, nor should it be forgotten that this theory was employed as a mechanism for the attainment of liberty.

It is against this backdrop that we should analyze the Constitution, along with the Articles of Confederation and the state constitutions that preceded it. These documents were debated and written by representatives of the people with the goal of setting the boundaries of governmental power, power that had heretofore been poorly defined and subject to constant revision by those holding it.

One result of the constitutional process was the codification into law of ideas favorable to liberty. From the debates over the Constitution, for instance, came the idea that the executive branch, which had historically held the right to take nations to war, should be deprived of that power. Instead, the founders reasoned that war powers should be located in the representative body of the people who would bear the costs and ramifications of war. The Bill of Rights and the state level bills of rights were also important statements, gleaned from the authors’ own experiences, about the extensiveness of the peoples’ liberties and the limitations on the government’s prerogatives.

Most importantly, the process of drafting and ratifying the Constitution led to some of the most profound defenses of a decentralized system of government – an essential feature of individual liberty – ever articulated.

From this perspective, it’s not obvious why the Constitution should be perceived in an entirely negative light. While obviously deficient and arguably ineffective, it was still an attempt to limit government. Given the history of the last two and a quarter centuries we may be well justified in calling  this attempt a failure. Spooner himself took this position when he wrote that the Constitution “has either authorized such a government as we have had, or has been powerless to prevent it.”

But even this failure doesn’t mean that we should flippantly toss the Constitution into the dustbin of history. While admitting the Constitution’s failures, it must be noted that they are failures of men and not of a document. The idea that the Constitution could have independently prevented the government from doing anything is a complete misunderstanding of the document, unless the expectation was that it would magically rise up at the first sign of tyranny and afflict the tyrants with death by a thousand paper cuts.

In the absence of sorcery, the only way the Constitution could have protected liberty is if individuals were sufficiently aware of their rights and willing to enforce constitutional limits on the government. It doesn’t logically follow that the document that detailed the limits of the government bears the responsibility of the people’s failure to enforce those limitations. Tyranny survives and grows in an environment in which people don’t know or care about their liberties. This fact is unchanged by the existence, or lack thereof, of written constitutions.

None of this, it should be noted, serves as an endorsement of the Constitution itself. I find much more agreement with the anti-federalists who opposed ratifying the Constitution than I do the federalists who supported it. The Constitution’s limits on the federal government have proven too susceptible to specious argumentation, as the anti-federalists predicted. Indeed, the federal government it created ultimately used the Constitution itself to validate its own growth at the expense of the states and the people. Certainly over 200 years worth of developments in political philosophy have improved on – and, in some cases, made obsolete – the assumptions on which the Constitution is based.

But the Constitution, as a historical document, remains an important, if imperfect, landmark on the road to liberty. Understanding it in its proper context and looking introspectively at why it has failed provide important insights into both the past struggle for liberty and the proper path forward today.