The Trouble With the Constitution

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The Constitution as Will and Representation, to Which Is Added a Summary View of the Present Rights, If Any, of British North America, Excluding Canada Not Taxed

by Joseph R. Stromberg

All across the American political spectrum, politicians and would-be opinion-molders clutch the United States Constitution to their bosoms and proclaim their unswerving loyalty to it and the vision of society, which they find therein. Left-liberals love the old parchment for the penumbras, emanations, and constructible silences and absences they espy in it. Oddly, for them the Constitution always seems to require that we immediately implement advanced social democracy and radical egalitarianism, lest Little Jamie Madison should start spinning in his grave.

On the right, one finds vastly different readings of the Constitution, but just as much professed loyalty to the old grocery list — a loyalty often resting on premises almost as dubious as those of the left-liberals. Here I have in mind Straussians, Neo-Conservatives, and all their heirs and assigns. Only on the hard left and hard right, do we fight what might be called realistic assessments of the Constitution's original bearing and meaning. Of course, that said, the hard right and left hardly draw the same conclusions from their respective realistic analyses.

Now I hasten to own up that if the Constitution were actually read and followed in any way remotely close to its letter — I leave the u201Cspiritu201D to the Nine Delphic Oracles – we would be better off in many fundamental respects. No longer could u201CCongress shall make no lawu201D be finessed into meaning that Congress can make such a law, if Congress should have a good reason. Nor could an Amendment stating that some right u201Cshall not be infringedu201D be taken as evidence than Congress can infringe that right. Infringing would be left to the states, where it belongs, depending on the states's bills of rights.

In other words, I have nothing but admiration for Joe Sobran's campaign to force people to come to grips with the neglected but interesting fact that we once had a Constitution, whose meaning was not all that mysterious, whereas we now have a u201Cliving Constitution,u201D whose meaning resides in the latest mood-swings of the Washington Nine together with whatever usurpations by Congress and the President the general public may have u201Cratifiedu201D through absent-minded acquiescence and bovine conformity. But sure, if constitutional exegesis ever got within 20 feet of original intentions, just about every law passed since 1933 would go by the board, along with many others, some of them dating from as far back as George Washington's first administration – and all this on a fairly generous construction of disputed clauses.

Readers may be forgiven for thinking that I just expounded the hard right position on these matters. No indeed: loveable as Joe Sobran's constitutionalism is, there remains a harder-core view, which takes into account the original infelicities, mistakes, and bad original intentions of the Constitution's framers.

First Church of the Constitution?

Now all this matters because, as William Appleman Williams long ago noted, in the absence of an established church, Americans have made a cult of the Constitution to provide u201Csecular cementu201D for their geographically extended and mobile society. Hannah Arendt made a similar point. Americans may argue morality and policy, but in the end, they try to show that a preferred view is u201Cinu201D the Constitution. This has required much legerdemain down the years.

I shall not hide my real view here, which is that in a very broad way the u201Cright-wingu201D or states-rights view of the Constitution comes closer to the truth than do various competing centralist, liberal corporatist, and social democratic views. Knowing that is not much real help, however. I am on record as criticizing libertarian opportunism and libertarian centralism in these matters, so perhaps I should explain myself.

What I reject, is the posture of those libertarians who deny the systematic logic of a federal system, or who see no value in acknowledging the rules of the game. Such libertarians break into pragmatic applause every time some organ of central power appears to expand liberty at the expense of states and localities. The under-ratified Fourteenth Amendment is central to their undertaking. Hooray! — they cry, the Supremes have given us pornography. Hooray for centrally sanctioned abortion, and so on. They fail to see the structural problem. If all power devolves on Washington, what happens when the Prez, the Nine, or the five hundred some scam artists decide to eliminate the new liberties along with the old ones?

To come to the point, then, I am in favor of taking the Constitution as establishing a division of power between the states and their common agent, even if that common agent is now their boss and aspires to rule the world. It is important for our intellectual honesty to keep alive a genuinely federal model of the federation. Since virtually all power has devolved on the Great Agent, taking this position serves us merely as a heuristic device, a standard of measurement, or a rallying point. Still, in the old days when Strom Thurmond sometimes asked proponents of new legislation for an enumerated power authorizing their proposed good deeds, he at least annoyed or embarrassed them. We can do no less.

Drawbacks, Timebombs, and Other Intended Mistakes

That said, there stands, nonetheless, the need for a critical understanding of the downside of the original plan. The Constitution Movement was, after all, the brainchild of American nationalists — Hamilton, Madison, and Jay, to name just three. These fellows had rather advanced ideas, to say the least.

The nationalist program emerged during the Revolutionary War. Gouverneur (his name, not his title) Morris lamented the end of the war in 1783, because, without war, there would be less excuse for energetic, central government. Even before the Articles of Confederation were ratified, some nationalists already claimed implied or inherent powers for the Continental Congress. Under the Articles, which they hated, they tried to find penumbras, emanations, and inherent powers lurking in the text. This did not get them very far; but such far-seeing men could not long be denied.

What they wanted was an American mercantilism, with themselves taking the role of the displaced British bureaucrats, manipulators, and fixers. The nationalists were mainly public creditors, commercial capitalists (especially from the Middle States), and regular army officers. The u201Ccrisisu201D of not getting their way was apparently not a crisis to most of their contemporaries. For many Americans, the loose structure embodied in the much-vilified Articles was precisely what the Revolution was all about.

In the name of preserving property, the nationalists worked for a central authority with ample taxing power, control of the money supply, and power to regulate foreign trade and interstate commerce. In his classic essay on Madison's misadventures at the Constitutional Convention u201Cas comic action,u201D M. E. Bradford showed how Madison retreated, time and again, from his advanced nationalist positions. While the Constitutional did represent a sort of peaceful coup d'tat, it was hardly what the nationalists actually wanted.

Origins, Struggle, and Compromise: Who Won?

Not only did the constitutional text fall short of what nationalists wanted, but in selling the document the nationalists, now misleadingly called Federalists, pitched their arguments to answer u201CAnti-Federalistu201D objections. The Federalist Papers overflow with claims that the rights of the people and the states would be secure, that no powers existed but those enumerated, and so on. Even here, Anti-Federalists, unconvinced, forced the adoption of ten amendments to clarify things. This made for extra work for the Federalists when they reappeared in the new government and set about creating American mercantilism.

M. E. Bradford made the excellent point that where original intent is at issue, the intentions of the ratifiers are more important than Mr. James Madison's. If Madison, Hamilton, and Jay had various secret opinions, they are nonetheless logically bound by what they said while merchandizing the new charter. This at least gives us a coherent beginning for the discussion, unless one wishes to accept Mr. Gary Wills's posthumous swindle theory of the Constitution (i.e., that Madison's secret views are legally controlling).

Infelicities of the Constitution

The ratifiers thought they were getting a general government with a few additional powers (enumerated) and sundry guarantees of their local self-government. The nationalists hoped they had gotten enough to fudge their way to a genuinely national government, which could feather their nests and create an American empire. It was not long before the pious assurances made in the ratification campaign gave way to new discoveries of inherent, implied powers.

Some specific items are worth a look here. u201CWe, the Peopleu201D is the first bit of confusion. With Patrick Henry, one stumbles at the threshold. This vague language was inserted because no one could predict which of the thirteen peoples would ratify. But there it stands, waiting for Daniel Webster and other great minds to torture national sovereignty out of three words.

Next, in this survey, come those ominous words u201CCongress shall have power.u201D At this late date, the whole notion doesn't seem to have worked out very well. Of course, there follows the list of u201Cenumerated powersu201D beyond which our ancestors were assured than none existed. Having sold their bill of goods, the Federalists shortly announced that u201Cnecessary and properu201D (bringing up the rear, as if an afterthought) rendered the whole list unneeded. Perhaps the text should have been u201CCongress shall have power so indefinite as to astound Djezzar Pasha and Jenghiz Khan.u201D But could anyone have sold that version?

With a nod toward Joe Sobran, I grant that if the General Government were held to the shortlist in Article One, things would be different. On the other hand, some of the enumerated powers are already troubling. There is first, a taxing power so general as to defy confinement to its supposed ends.

One of those ends, u201Cthe general welfare,u201D is a bit open-ended, too; although an 18th-century understanding of that does have some built-in limits. This cosmic grant of power was a radical departure from the revolutionary republican distinction between external and internal taxes, a departure with Inevitable Abuse written all over it. John Randolph of Roanoke once remarked that if the states had given the Confederation Congress the power to levy a 5% ad valorem tax on imports (that is, an external tax), there would have been no excuse for a new constitution. Here, the Federalists really overreached and, remarkably, got what they wanted.

The powers u201Cto borrow money,u201D u201Cto regulate commerce,u201D to u201Cestablishu201D [not build!] u201Cpost-roads,u201D and u201Cto coin moneyu201D were essential to any American mercantilism, even if they amounted to granting to an even less accountable government the very powers whose abuse by the several states was a staple item of Federalist propaganda. Note to any future Constitutional Convention: consider leaving these powers out.

The power to u201Craise and support armiesu201D meant, in practice, the creation of standing armies in time of peace, the beginning of the West Point syndrome, and other problematic practices. This brings us, in quickstep, to one of the biggest screw-ups in the whole document: the presidency (and see the new book, Reassessing the Presidency, ed. John V. Denson, Mises Institute, 2001). Talk about your mistakes with entirely foreseeable outcomes!

But No. At a time when many Americans still identified executive power with despotic, unaccountable royal Governors, the nationalists knew better. Hamilton famously cried for more u201Cenergy in the executive,u201D at all times and places. Today there is no problem at all with energy in the executive. There is so much energy there, in fact, that sometimes the kept media get their shorts in a twist over stories that the Great Man has been separated by some few yards or minutes from his childishly named u201Cnuclear football.u201D For those who have missed such reports, the atomic pigskin is actually a briefcase of sorts, carried about by a couple of serioso, robotic officers (marines?) and chock full of nuclear codes and commands. It must always accompany the Great Personage, in case he needs to incinerate half the world-ball between his appetizer and main course. But the inherent criminality of the whole concept never occurs to the gentlemen of the press, suggesting that the fourth estate is something of a fifth column.

I expect that even Alexander Hamilton might blanch at having that much energy in the presidency; but contemporary Americans find little odd about it. I think we could do with a whole lot less energy in the executive. To be very brief about it, the Founders knowingly created an institution so central to their vision of government that, even if there were no inherent executive powers (as Raoul Berger rightly maintains) in the text, institutional drift could easily present us with an elective Caesar, but Caesar nonetheless. This is pretty good for an office, which, on paper, has all the powers of a subaltern clerk. Better King Log than King Stork.

Another major infelicity lay in the federal court system. This, too, took some time to work itself out, but enough leeway existed in the original plan to make the courts' claims mildly plausible. John Marshall, one of the friendliest reassurers of critics in the Virginia ratification convention, wrote himself all sorts of blank checks as Chief Justice. And now millions of educated people believe that the Constitution is what the Court says it is. That is, pragmatically, true enough, but it dodges all the real questions of whether co-ordinate branches — and the states as well — have any say in the great hermeneutic quest.

Shooting the Messengers

You might think that a plan of government with so many black holes, so many interesting lab experiments and the like, might have met with some criticism from the prospective white mice. It did indeed. Virtually every dire prediction made by the misnamed Anti-Federalists has come true, but like Rodney Dangerfield, they get no respect. Some of their predictions took decades to come about, giving people time enough to forget they had been warned, although the dark side of the executive branch showed itself very early.

So the Antis, where mentioned at all, get treated as the Typhoid Marys and Cassandras of the piece — a sad object lesson in what happens to men of little vision, liberals of too much fear, and so forth. It is precisely the essential correctness of the Anti-Federalist critique, which recommends it to us, today. It was the Constitution which was utopian, in the bad sense; utopian because it called on central government to remained u201Climitedu201D while it provided a set of incentives and moral hazards all pointing the other way. The Anti-Federalist vision entailed protecting the rights of the people and the states by not creating institutions which would, in a long enough run, undermine those rights. Negative, to be sure, but also more likely to have worked out the way the gang of three said, in The Federalist, that their plan would work.

This is where the hard left critique overlaps our own. Mr. Michael Lind likes to say that we have really had three Republics — almost as many as France! —

the one founded in 1788, the one founded by father Abraham, and the one founded by Roosevelt II in 1933. This is rather realistic. All three Republics have pointed to the same Constitution as their justification.

Mr. Daniel Lazarre is impatient with all this flummery. He is unhappy that the persistence of reactionary constitutional forms, even as an elaborate game of make-believe, blocks his vision of a happy socialist America. Away with the 18th-century checklist! Let us have a sovereign national Parliament, ruling in the name of the egalitarian toiling masses, to bring us up to the level of Britain and Sweden.

Lazarre's program is not very appealing, quite frankly. But his and Lind's realism is very bracing. Certainly a Constitution which has allegedly withstood Abe, Woodrow Wilson, FDR, and Billy C, cannot mean very much at all in a practical sense.

William Appleman Williams, a very different sort of leftist from Messrs. Lind and Lazarre, wrote in 1965 that "If one feels the need to go ancestor-diving in the American past and spear a tradition that is relevant to our contemporary predicament, then the prize trophy is the Articles of Confederation." Murray Rothbard, who was equally favorable to the Articles as against the Constitution, cited Williams’s views on the Articles and decentralization in Left and Right (II, 1 [Winter 1966], pp. 4-6).

The Constitution as a General Strike

I think it behooves us to make constitutional arguments, as needed, especially as regards states’ rights, enumerated powers, and the rights of Englishmen (so to speak). A reading of the Constitution in the tradition of John Taylor of Caroline provides a very useful reference point and instrument for deconstruction of the constitutive lies on which the US Third Republic rests. Of course the ruling elites are moving on toward a Fourth Republic and we must understand that, just as we might defend a nation-state against the Empire without taking up nation-statism as principle, the Constitution, even rightly understood, is only relatively good.

A Sorelian deployment of the Constitution as u201Cmythu201D has its uses, provided we acknowledge, in the end, that we are, and must be, Anti-Federalists.

Joseph R. Stromberg [send him mail] is the JoAnn B. Rothbard Historian in Residence at the Ludwig von Mises Institute and a columnist for Antiwar.com.

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